The Mediation Playbook: Three Keys to Preparing your Client for Mediation — and Three Mistakes to Avoid

Fri, Nov 28th, 2025 | by Miles Mediation and Arbitration | Article | Social Share

By Lori Adelson

Mediation is where most cases settle, making it the most critical negotiation of the litigation lifecycle. Its success hinges less on courtroom theatrics and more on a focused, pragmatic approach — especially concerning the client. Getting your client ready isn’t just “good practice.” It’s the core strategy for achieving a maximum-value resolution.

Here are the top three ways attorneys can ensure their client is a strong asset, not a liability, at the mediation table:

1. Anchor Expectations: Negotiation Over Judgment
The single biggest obstacle to settlement is a client who expects a verdict. Clients often enter mediation thinking it’s a dry run for trial, expecting the mediator to validate their legal superiority. This mindset creates rigid, unrealistic demands.

The Fix: You need to perform an honest “risk/reward” analysis long before the mediation date. Frame mediation as a business transaction, not a moral trial.

• Focus on the cost of “no deal”: Explain the real expense of going to trial: attorney fees, expert costs, appeal risk, and the sheer time and stress involved. A good settlement isn’t just about the money; it’s about buying peace and certainty.
• The power of compromise: Clarify that a successful negotiation means both sides give up something. If clients are only prepared to “win,” they are prepared to lose the chance to settle. This reality check shifts their focus from perfect justice to maximum practical outcome.

2. Hunt for Interests: The Strategy Beyond the Dollar Sign
Lawsuits articulate positions (e.g., “$500,000 in damages”). Effective mediation is driven by interests — the core needs, fears, or goals underlying that position (e.g., “reputational clearance,” “financial stability,” “a neutral reference”). Sticking only to the dollar amount limits the solutions to a fixed-sum game.

The Fix: You must become an anthropologist of your client’s needs. Ask probing questions like the following to uncover his or her true motivations:

• “If we got the money, would that truly resolve your sense of injustice, or is there something else you need?”
• “If the company gave us a non-disparagement agreement, how much is that worth to you?”

This exploration allows you to unlock creative, non-monetary solutions — like structured payments, future business contracts, or apologies — that can bridge a gap that monetary offers alone cannot. Often, a small, non-cash concession from the opponent satisfies a deep client interest, making a lower monetary offer palatable.

3. Pre-Game the Emotions: Managing the Human Factor

Litigation is stressful and often fueled by strong emotions. Clients can unintentionally sabotage negotiations by letting anger, fear, or a desire for vengeance dominate their behavior. A breakdown in emotional control can derail hours of strategic planning.

The Fix: Provide explicit coaching on demeanor and procedure.

• The private vent: Set aside time before the mediation to allow clients to express all their anger and frustration with you, privately. This acts as a pressure release, making it less likely they’ll explode in the joint session.
• The professional mask: Instruct clients to remain calm, respectful, and measured throughout the process. Advise them to use breaks if they feel overwhelmed. Their goal in the room is not to fight; it is to appear credible, reasonable, and determined to settle.

Tactical Errors: Three Common Attorney Missteps

Preparing your client for mediation is one aspect of setting the stage for a successful mediation. Another aspect is ensuring that you have also adopted a mediation mindset. Transitioning from trial lawyer to negotiation advocate requires shedding old habits. Even seasoned litigators can make tactical errors in mediation that undermine their client’s position and the chance for resolution. Avoid these three common, yet avoidable, mistakes.

1. Mistaking It for a Mini-Trial: The Adversarial Hang-Up
The error here is treating the mediator as a judge and the opening session as closing arguments. The attorney delivers an aggressive, fact-heavy, and inflammatory opening statement aimed at “crushing” the other side’s resolve.

The Fix: The mediator is not a judge; he or she is a facilitator. An overly aggressive or personal attack simply polarizes the room and makes the opponent more entrenched. It forces the mediator to waste time deescalating tension instead of negotiating.

Your opening should be brief, respectful, and focused on the risk and opportunity of settlement. Remember your audience is the opponent’s attorney and his/her client, whom you need to give reasonable justification to accept a deal. The goal is to open a productive dialogue, not score a rhetorical victory.

2. Failure to Conduct a Candid Risk Assessment

This error is rooted in the fear of delivering bad news. The attorney avoids the difficult conversation about the case’s weaknesses, allowing the client to maintain an inflated view of their potential trial success.

The Fix: You have a duty to provide a sober, objective evaluation of the case. This involves more than just reciting case law; it means discussing the messy realities of trial:

• Weak points: What evidence or testimony will be hardest to explain to a jury?
• Opponent’s strengths: What is the strongest piece of evidence or argument the other side has?
• Verdict uncertainty: Remind the client that the law allows for a wide range of possible outcomes, not just their desired one.

If the client is blindsided by the opponent’s strong points or a low opening offer, they will likely blame you and become instantly resistant to compromise. A candid pre-mediation assessment ensures the client’s walk-away number is realistic and grounded in legal risk, not emotion.

3. Limiting Solutions to Courtroom Remedies

Many attorneys default to asking only for money because that’s all a court can order. By narrowly focusing on damages, they ignore the vast, flexible universe of options mediation provides.

The Fix: Think like a deal broker, not a judge. The true value in mediation often lies in its ability to generate custom-tailored solutions:

• Payment structure: Can a payment schedule or annuity offer tax or cash-flow benefits the client cares about?
• Future relations: Can the parties agree to a framework for future business (if applicable) or a confidentiality pact that protects their reputations moving forward?
• Non-judicial relief: Sometimes a jointly approved press release, a specific operational change, or a public/private acknowledgement is the key that unlocks the deal, even more so than a marginal monetary increase.

By thinking beyond the standard judgment form, you enhance the possibility of a final agreement that is more complete, more satisfying, and ultimately, more durable for both parties.

Ensuring that your client understands the mediation process and his or her role in it, and that you approach the mediation as an opportunity for settlement, not as a trial, should be part of your mediation playbook. When both you and your client come in with a mediation mindset, you greatly increase the likelihood of a positive result at mediation.

*Originally published in the Daily Business Review and reprinted with permission.

About Lori Adelson

Lori G. Adelson is a highly respected Florida Supreme Court Certified Mediator and Qualified Arbitrator who focuses on resolving complex business/commercial and employment disputes through mediation and arbitration. With 25 years of legal experience, she brings a deep understanding of the law and a practical, problem-solving approach to every case.