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How To Prepare Your Clients For Mediation

How to Prepare Your Clients for Mediation

Mediation is often an unfamiliar process for many clients, leading to uncertainty and anxiety. As a legal professional, one of your key responsibilities is to ensure your clients are well-prepared and confident when entering mediation. This preparation not only involves explaining the mediation process but also equipping clients with the emotional and practical tools they need to achieve a favorable resolution. This guide will provide you with strategies on how to prepare your clients for mediation effectively, ensuring they understand the process and are ready to engage constructively. Knowing how to prepare for mediation can help alleviate these concerns.

Mediation vs. Litigation

In today’s legal landscape, congested civil dockets often force clients to endure lengthy waits, sometimes spanning years, while the financial and emotional toll of litigation escalates. Mediation has emerged as a vital alternative to this overburdened judicial system, making it essential for litigators to master effective mediation strategies. Knowing how to prepare for mediation is crucial in this environment.

Mediation aims to find a solution that serves the future interests of the parties involved. In contrast, litigation is backward-looking, with each side investing heavily in a structured process to establish whether a legal wrong occurred and, if so, what remedy is appropriate. During a trial, both sides present their case to strangers who decide the outcome based on which version they find more convincing. This “all or nothing” approach has inherent limitations, even if the jury sees merit in both sides. Understanding how to prepare for mediation can help overcome these challenges.

Mediation represents a critical juncture in any legal dispute, providing parties a chance to reach common ground and resolve conflicts peacefully. As an attorney, your role extends beyond representation to effectively guiding your client through the mediation process. Thorough preparation is essential for maximizing the chances of success in mediation, including getting your client ready for what to expect. Here are key steps to ensure your client is well-prepared and confident in navigating mediation. Knowing how to prepare for mediation is central to this guidance.

Selecting the Right Mediator

It’s often most beneficial for the parties to choose an experienced mediator who has expertise in the specific area of the claims and is respected by both sides. Start the resolution process by collaborating with opposing counsel during the mediator selection. Don’t automatically dismiss a mediator just because the other side suggested them. In fact, agreeing to a mediator recommended by your opponent can increase the chances of settlement. The fear that the mediator will be biased is generally unfounded. Successful settlement relies on meeting everyone’s expectations. Knowing how to prepare for mediation includes choosing the right mediator.

Your client should be fully briefed by the mediator about the mediation process, so they should have a basic understanding of how it will work. It’s important to reassure your client about key aspects of mediation: that participation is voluntary, mediators remain impartial, discussions are confidential (with some exceptions), and that the outcome is ultimately decided by them. This reassurance is a crucial element in preparing for mediation.

Early Mediation Benefits

Engaging in early mediation offers a great opportunity for settlement before significant resources are spent on litigation and positions become entrenched. Plaintiffs who refuse early mediation are often still driven by strong emotions, focused on punishing the defendant, and may make unrealistic settlement demands. This can lead defendants to believe that a settlement is unattainable. Being prepared for early mediation can help avoid these problems.

Setting Expectations for Mediation

Most cases are settled before going to trial, but this largely depends on the counselors and clients involved. It’s important to prepare clients to expect that their case will be resolved on the day of mediation. Ensure they understand the benefits of mediation over trial, such as reduced stress, time, cost, and the privacy it offers. Trials can be unpredictable, and jury verdicts can be appealed. Knowing how to prepare for mediation can make the process much smoother and increase the chances of success.

Clients who hesitate to engage in mediation often worry that making a significant offer will be seen as admitting fault and will encourage the plaintiff to demand even more. Some avoid early resolution, believing that the litigation process will wear down the plaintiff and force a settlement on their terms. However, this strategy can backfire, as the combined costs of prolonged litigation and the eventual settlement can be higher. Mediators are skilled at facilitating settlement discussions once everyone is together. There is a fine line between our instinct to fight and flee, and often, plaintiffs are ready to resolve the case after they’ve had the chance to share their story with a neutral party. This is why understanding how to prepare for mediation is so important.

Explaining the Mediation Process to Clients

First, it’s crucial to understand your client’s background. How familiar are they with the mediation process? Many clients might not be familiar with mediation and its details. It’s important to explain to your client what they can expect on the day of mediation. Describe what they can expect during the session, including the mediator’s role, why they were chosen, the structure of the proceedings, and the goals of mediation. If you have previously worked with this mediator, share some details about them. Also, provide information about the personalities of the opposing counsel and anyone else who might be present. Prepare your client for the possibility that mediation can be lengthy and may feel slow at times. As attorneys, we understand this, but clients often don’t. Emphasize that mediation is more like a marathon than a sprint, and patience is key. Encourage them to settle in, bring a book, and be prepared for a full day. This thorough preparation is essential for successful mediation. Providing a thorough overview helps reduce anxiety and ensures your client understands what to anticipate. It’s also crucial to emphasize that they have control over the process. This can include having input on the issues and numbers discussed during caucuses and conversations with the mediator.

Terms like caucuses, bracketing, midpoints, and other legal jargon are familiar to those who mediate regularly. However, your client might not know what these terms mean or what to expect during mediation. It’s common for clients to be unaware that they might be in the same room as the opposing party. Explaining the logistics and outlining the typical flow of the mediation day can help your client feel more comfortable and confident, increasing the chances of reaching a resolution. Understanding these logistics is a key part of preparing for mediation.

Explaining Mediation Dynamics

The more your client understands the mediation process, the better they will handle the ups and downs of the session. Describe how the approach to resolving disputes is shifting from an adversarial court setting to one focused on achieving closure through compromise. Prepare your client for the possibility of very low and very high proposals at the beginning and have an honest discussion about what a realistic settlement might be. Ensure they aren’t surprised during mediation if you don’t view their case as a sure win. Explaining these dynamics is crucial for effective mediation preparation.

Developing a Plan

Make sure to have a plan in place. While you understand the importance of thorough preparation, your client might not. Explain why having a plan is crucial and ask them about their overall expectations, encouraging them to share their plan with you. You may need to guide them on how to prepare this. Emphasize that it’s better to be over-prepared than under-prepared. Help your client articulate their goals and priorities for mediation. What outcomes do they hope to achieve? What are their main concerns or areas of interest? By identifying these goals and interests early on, you can align your negotiation strategy with their objectives and advocate more effectively. Also, discuss any potential trade-offs or concessions they might consider to reach a mutually acceptable agreement. Setting clear goals and priorities helps focus the mediation process and informs decision-making during negotiations. Developing a game plan is essential for successful mediation preparation.

Exchanging Settlement Proposals

Kickstart the negotiations by exchanging realistic settlement proposals before the mediation. If the plaintiff is seeking economic damages such as back pay, medical bills, and attorney fees, calculate the exact amounts and have all supporting documentation ready for review. Avoid making mediation contingent on the opposing party making a specific offer in return for agreeing to mediate. Doing so can hinder the mediation process and diminish your client’s chances of reaching a resolution.

Pre-Mediation Communication

Arrange a pre-mediation phone call with the mediator to discuss any obstacles that might affect your client’s willingness to settle and how the mediator can assist in managing your client’s expectations and emotions. Additionally, decide if your mediation statement should stay confidential. Sharing statements, especially those parts concerning the merits of the claims, can help both parties better assess the value of the case.

Crafting Effective Mediation Statements

Crafting well-written mediation statements can enhance your chances of a successful settlement by making the mediator’s job easier. Begin by introducing your client with a brief overview of their personal and professional achievements and any other relevant background information. Then, outline the factual and legal issues that led to the litigation, detail past settlement negotiations, and list the range of outcomes your client would find acceptable. Address the obstacles that have hindered settlement so far, including any emotional issues that need to be resolved for a realistic settlement. Finally, recognize your weak points upfront instead of letting the opposing party highlight them during mediation, and focus on educating rather than persuading. Effective mediation statements are crucial for preparing for mediation. Ensure that it remains informative and doesn’t turn into a closing argument, as these can be confrontational and set a negative tone for the mediation.

Plaintiffs benefit from a genuine presentation that highlights the advantages of closure for everyone involved. Similarly, the defendant’s attorney can set a positive tone by thanking the plaintiff for attending, expressing optimism about the mediation’s success, and showing some sympathy for the plaintiff. With a few carefully chosen words, the defense counsel can deny liability while also reducing the plaintiff’s negative perception of the defendant and easing the emotional tension of the proceedings.

Respectful Engagement

Encourage your client to listen with an open mind to the other side’s perspective. Effective communication is crucial for successful mediation. Prepare your client by having them practice active listening, clearly stating their position, and engaging respectfully with the opposing party. It’s beneficial for the other side to hear directly from your client. For plaintiff’s counsel, having your client share a brief story for example, for a personal injury case they could share about how their injuries impacted their life. For defense counsel, having an insurance representative acknowledge what the plaintiff has gone through can make the plaintiff feel heard. These statements help create a positive mediation environment. Encourage your client to express their concerns and interests openly while being receptive to the other party’s views. Highlight the importance of maintaining a professional demeanor and avoiding confrontational behavior, which can hinder productive dialogue. Effective communication fosters understanding, cooperation, and increases the chances of reaching a resolution. It’s a key component of preparing for mediation.

Conducting Mock Mediation Sessions

After thoroughly preparing your client on what to expect and discussing their response options realistically, it’s just as important for the lawyer to get ready for the settlement conference. Consider holding mock mediation sessions with your client to replicate the dynamics of the actual process. Role-playing helps your client get used to the negotiation environment, practice presenting their arguments, and anticipate challenges or objections from the other side. Offer constructive feedback and guidance to help them refine their negotiation skills and boost their confidence in navigating mediation. Conducting these mock sessions is a practical step in preparing for mediation.

Gathering Information and Documentation

Attorneys typically prepare evaluations in advance. Consider how you have presented the issues in mediation and how well you have informed your client about the topics that will arise. What do you believe the settlement range will be? Your client will evaluate you based on their perception of the expected settlement range. Do your research to determine this range and communicate it to your client beforehand, explaining your reasoning. Your effectiveness will be judged by how accurately you estimate the optimal range. These evaluations are a crucial part of preparing for mediation.

If your clients will be discussing finances during mediation, it’s important to inform them that they must provide full, honest, and transparent disclosure, just as they would to you as their attorney and to the court. Let your client know in advance what financial information will be needed for the mediation. Discussing these financial disclosures is a critical part of preparing for mediation.

Before mediation, work closely with your client to compile all relevant information and documents related to the dispute. This includes legal papers, contracts, correspondence, and any other evidence that supports your client’s case. Organize these materials clearly and concisely so they are easily accessible during the mediation session. A thorough understanding of the facts and evidence strengthens your client’s position and helps them advocate effectively during negotiations. This preparation also allows you to address any weaknesses in your case that the opponent might raise. Bring current financial information and the latest settlement offers, and have a draft agreement ready on a computer for easy modification, printing, and signing. When both parties and their attorneys come prepared to settle, mediation is much more likely to succeed. Gathering information is a crucial part of mediation preparation.

Knowing Your Case and Mediation Techniques

Make sure you are thoroughly familiar with your case and skilled in mediation techniques that can enhance your client’s chances of a favorable outcome. Have all the essential facts and figures readily available. If you’re uncertain about your initial approach, consult with your mediator. It’s never too early to start planning your strategy to reach an agreement. The tone during mediation should be cooperative and amicable, not confrontational. If there have been heated moments during litigation, meet with the opposing counsel to “clear the air.” Clients will already bring plenty of emotion to the mediation, so it’s crucial for lawyers to avoid adding any tension. Knowing your case inside and out is crucial for effective mediation preparation.

Managing Incremental Progress

Even if the offers coming from the other side are not to everyone’s liking, progress is being made if defendants are raising their offers and plaintiffs are lowering their demands. It’s common for parties to feel insulted by the latest offer or demand, but it’s crucial to help your clients see that any movement towards resolution, even small steps, is positive. Encourage them to avoid feeling insulted and recognize the value of incremental progress. Managing this gradual advancement is a key part of preparing for mediation.

Managing Client Emotions

Perspective is key, and your preparation should focus on shaping your client’s outlook. What do they expect to happen? How does the potential outcome align with their expectations? Their view of the mediation process and your performance will largely depend on the perspective you help them develop beforehand. Shaping the client’s perspective is vital for effective mediation preparation.

The process is more effective when clients are informed in advance, allowing them to emotionally prepare. It’s crucial for parties to understand that they will have significantly more input into the resolution of their case through mediation compared to a courtroom setting. In mediation, clients must agree on the outcome, unlike in a trial where a judge or jury makes the decision. Clients should be emotionally ready for mediation, and it’s typically best to wait until enough discovery is completed to avoid any information gaps. Additionally, scheduling mediation close to the trial date but before final trial preparations can encourage settlement. Knowing how to prepare for mediation at this point is crucial.

Legal disputes can stir up strong emotions, and mediation is no different. Recognize and validate your client’s feelings while helping them manage their emotional reactions effectively during the process. Encourage them to stay calm, composed, and focused on the issues, rather than letting emotions drive their actions. Discuss strategies for handling potential triggers or difficult situations that might arise, such as taking breaks or seeking support from a trusted advisor. By proactively addressing emotional aspects, you empower your client to participate in mediation from a position of strength and resilience. Managing client emotions is crucial for successful mediation preparation.

Clients may find mediation intimidating, especially if it’s their first time being in the same room as the opposing party, which can heighten emotions. Mediators are skilled and trained to handle these intense emotions and will have already assessed the case’s suitability. Reassure your client that while they should try to manage their emotions, the mediators are equipped to help them navigate this emotional process.

Countering Opposing Arguments

Discuss the arguments that the opposing counsel is likely to present and how you plan to counter them. Addressing and countering these arguments is a crucial part of preparing for mediation. Make sure your client is ready to hear things during mediation that they might not like or agree with. You will also encounter points you don’t agree with. As their attorney, it’s your responsibility to prepare them for the opposing side’s arguments. If you explain these in advance and walk them through the opposition’s stance before the mediation, they will be less likely to become agitated when the mediator presents these arguments. Being forewarned helps reduce emotional reactions and allows for a more composed engagement in the process. Anticipating and preparing for opposing arguments is key to successful mediation preparation.

Some clients may worry about not having an equal chance to speak, especially if they’ve previously felt overpowered in the relationship. Assure them that mediators are trained to handle power imbalances and will support both parties in addressing these issues. It’s also important for clients to understand that mediation is not binding; it’s about exploring options to find a mutually agreeable solution. Throughout the process, they can seek legal advice from you, ensuring they are continually guided. Addressing power imbalances is a crucial part of preparing for mediation.

Brinksmanship, common in direct negotiations, doesn’t belong in mediation. Ultimatums can be detrimental to reaching a settlement. If the gap between both sides is too wide and hope is fading, use brackets to bridge the difference rather than making a “best and final” offer. Brackets allow one party to make significant concessions in return for a similar move by the other side. Trust your mediator to help shape these brackets, as they have insight into what numbers will work best. Avoiding ultimatums is essential for effective mediation preparation. It’s crucial for your client to stay calm if the plaintiff introduces unexpected information during mediation. Handling this may require more discussion and support than you originally expected.

Managing Outcome Expectations

Avoid setting a strict “bottom line” settlement number for your client before mediation, as it can create an impasse. Instead, approach negotiations with flexibility, considering a broad range of reasonable outcomes. Similarly, arbitrary limits set by absent adjusters can lead to a deadlock before the defendant gets the best possible offer from the plaintiff. Avoiding such settlement anchors is crucial for effective mediation preparation.

Help your client set realistic expectations about the outcome. Clarify that mediators are not judges and don’t take sides. Their role is not to declare a winner or loser, but to help both parties find common ground. Most of the time, they succeed in doing so. If their expectations are unrealistic, using the mediator’s insights and understanding the dynamics in the other room can help adjust their perspective during the process.

Mediation provides a space for negotiation and compromise but doesn’t guarantee a specific result. Have an honest discussion with your client about possible outcomes, considering both best-case and worst-case scenarios. Highlight the advantages of reaching a mutually agreeable solution while also preparing them for the chance that mediation may not resolve everything. Setting realistic expectations helps your client approach mediation pragmatically and be more open to constructive engagement. Managing these expectations is a key part of preparing for mediation.

Remind your client that, even if mediation doesn’t result in a resolution, it still serves as a valuable step in advancing the settlement process.

Seeking Acceptable Solutions

The success of mediation hinges on both parties aiming for a mutually acceptable solution. If one side reaches their financial limit, consider leveraging nonmonetary benefits that wouldn’t be possible in court. For instance, in employment disputes, parties can agree on nonmonetary terms to overcome a financial deadlock, such as changing a termination to a resignation, providing a reference letter, or waiving a non-competition clause.

Mediation offers a non-adversarial setting where the neutral party can help absorb the emotional reactions from both sides and transform that intense energy into a forward-focused motivation. As parties shift their mindset from past grievances to future solutions, emotions calm down, and they start genuinely listening to each other. By gaining a better understanding of the opposing viewpoint, they can find common ground and build a fair compromise.

If all parties make a sincere effort to resolve the case, it should lead to a settlement. A good attorney aims for the best possible outcome for their client, and effective mediation can help achieve this. The ultimate goal of preparing for mediation is to reach a favorable resolution.

Leveraging Mediator’s Strategies

If negotiations hit a roadblock, rely on your mediator for alternative strategies. Trust their expertise in keeping the dialogue going through timely concessions or adjusted tactics. If an impasse seems likely, consider pausing to reassess your positions with the mediator, continuing discussions via phone, or seeking a mediator’s proposal. This approach can be effective as the mediator’s recommended terms often facilitate agreement. If both sides agree, draft an enforceable settlement memorandum outlining all key terms before finalizing the agreement. When drafting, consider ways to add value, such as minimizing income and payroll taxes. Using mediator strategies is essential for effective mediation preparation.

By focusing on the future, mediation allows parties to avoid the stressful process of assigning blame and instead work together to build a collaborative path forward. They agree on a compromise that values time, our most precious and fleeting resource, and regain control of their lives and businesses by letting go of the need to win. They move forward on this shared path, hopeful for the future. There’s nothing more satisfying for a neutral party than witnessing the moment when parties, who couldn’t stand each other at the start of the day, end the mediation with handshakes, hugs, and smiles. This exemplifies the power of mediation.


Mediation taps into a natural comfort zone in our instincts, bridging the gap between the ancient “fight or flight” response that is ineffective for modern legal disputes. As emotional centrists, we’ve evolved to seek practical, private solutions through dialogue rather than conflict. Mediation helps plaintiffs avoid the stress of feeling forced to either “fight” by pursuing a lawsuit with an uncertain future outcome or “flee” by accepting a low settlement offer. Given these unattractive options, mediation is an obvious choice due to its minimal resource investment and high likelihood of success in a single day.

In summary, preparing your client for mediation is a team effort that involves detailed planning, clear communication, and emotional support. By guiding your client through this process and providing them with the necessary tools and strategies, you enable them to approach mediation with confidence and effectively advocate for their interests. Thorough preparation is key to achieving a successful mediation outcome that resolves the dispute and leads to closure. Knowing how to prepare for mediation ensures your client is equipped to engage constructively and secure the best possible outcome.

Reach out to our Bullard Law mediation attorney today.

As a seasoned Florida attorney with mediator certification, Cesery Bullard is authorized to practice in all Florida Courts. With 20 years of experience litigating commercial, business, and various other cases across state and federal courts nationwide, she brings a comprehensive perspective on judges, juries, and likely case outcomes. Cesery leverages this knowledge in mediation, helping parties understand how a judge, jury, or arbitrator might view their position. Her practical and up-to-date understanding of litigation enhances the negotiation process, enabling her to see the case from each participant’s viewpoint and achieve results.

Want to schedule a mediation or arbitration? Get in touch with Bullard Law today and we’ll start this important journey together >>>