Ten Mediation Tips to Guarantee a Productive Mediation

by | September 2023

Michael Ludwig outside smiling
Not every case that goes to mediation settles. But settling and resolution should remain the goal of most mediations. After all, the “R” in ADR stands for “Resolution.” Here are ten mediation tips you can use to maximize your chances of having a productive mediation and getting your case settled:

1. Mediator Selection: Choose the right mediator. You want a mediator who is knowledgeable in the subject area and who can relate to the parties. Not every mediator is right for every dispute, and both sides should be comfortable with the mediator who ultimately is selected. I previously shared some thoughts about choosing the right mediator for your dispute here.

2. Mediation Brief: Draft a mediation brief that educates the mediator about your position, and also anticipates and responds to arguments likely to be raised by the other side. Your focus should be on presenting the facts as you understand them and reserving lengthy legal analysis only for nuanced or disputed points of law. Be mindful of whether you want to share your brief with the other side, and how your own client will respond to the brief.

3. Pre-Mediation Calls: Connect with your mediator before the mediation. Use this time to provide the mediator with insights about your client, your dispute, and your relationship with opposing counsel. Your mediator will use this information to prepare for the mediation and tailor their approach. You also can use this time to establish rapport with a mediator who you are working with for the first time.

4. Key Evidence: Provide the mediator with critical evidence you intend to rely on. This may include deposition testimony excerpts, text messages, emails, video clips, and the like. The mediator can use the actual evidence at the mediation more effectively than your description of the evidence, which the other side may describe differently. In early mediations, consider sharing such evidence with the other side if it was not yet disclosed in discovery, but avoid springing it on them the day of the mediation when they might not have enough time to digest it and appreciate the impact it may have on settlement value.

5. Prepare Your Client: Educate your client about the mediation process. Explain that it is not uncommon for the parties to begin the negotiation by taking extreme positions (aka the insult round). Assure your client that experienced counsel (you) and a skilled mediator can guide the parties from extreme positions to a place of resolution.

6. Analyze Settlement Value: Realistically evaluate the settlement value of your case prior to the mediation. At the mediation session, continue to adjust your evaluation based on new information and settlement realities presented. The mediation process often depends on both sides compromising to a certain extent as discussions evolve.

7. Maintain Credibility: Establish credibility by accurately recounting facts that will be shown by the underlying evidence and acknowledging evidence that is not helpful to you. If there is evidence that is not helpful to your position, be prepared to explain how you intend to overcome it.

8. Keep Your Cool: Keep your emotions in check. Parties who are not used to the litigation process (and even some who are), can become very emotional when discussing what happened and then reducing what happened to a settlement amount. They count on their attorneys to stay composed and measured, and to guide them through the negotiation process.

9. Settlement Agreement: Have a settlement agreement ready to be signed once an agreement is reached. Many attorneys are comfortable collaborating on a long-form agreement in the days after a mediation, but, as I previously discussed, concluding your mediation with a signed and enforceable agreement invariably provides more certainty.

10. Decisionmaker Participation: Have the decisionmaker on your side present and participating throughout the mediation. A very prominent mediator recently said that the “first, second, and third” reasons mediations fail is because the ultimate decisionmaker was not present and participating. Being available by telephone is a poor substitute for actually being part of the process. And in the age of virtual mediations, participating in a mediation is not the heavy lift it once was.

Here is a bonus mediation tip for good measure:

Be flexible: All disputes are unique, and there is no single mediation formula that works every time. Be open to unconventional suggestions from your mediator about how to proceed. And draw on your own experience to think outside the box about what might work for a particular dispute. Remember that mediation can be productive even when it does not end in a settlement. New information is exchanged and learned. The central issues in a dispute are crystalized, and the parties leave with a better understanding of the strengths and weaknesses of their respective positions. This all can lay the groundwork for informed strategy moving forward and for future settlement discussions.

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Hi I’m Mike Ludwig

I committed myself to honing my craft as a mediator and relentlessly learning everything I could about dispute resolution. I will endeavor to share thoughts and insights about some facet of mediation, negotiation, and dispute resolution, and other information that could be helpful or interesting to you.