Don't Get "Lost" - How to Prepare Yourself (and Your Client) for Mediation - ABA YLD 101 Practice Series

By Stephanie M. Jones

You have been asked to either prepare for your first mediation or prepare the assigning partner for mediation. You might have attended mediations before, but all that you gathered was that each side makes an opening argument, the parties are placed into separate rooms, and the mediator traveled back and forth between the rooms. With that limited knowledge, you now have to prepare not only yourself, but the client as well. What to do?

This article will break mediation preparation into four (4) stages, identified as follows:

Setting Up Mediation

  • Research the mediator. Compile a list of appropriate mediators. The mediator should have legal knowledge relevant to your case. Do not agree to a mediator without first researching the mediator's practice area(s), years of experience, areas of expertise, and any potential biases the mediator has against your firm or your client.
  • Confirm the mediation date and time. Send a letter to the mediator and opposing counsel confirming the date, time, and location of the mediation. If the mediation is not at the mediator's office, use your best efforts to schedule the mediation at your office. Home advantage can sometimes be beneficial in a mediation setting.

Informing the Mediator and Preparing Your Client About the Process

  • Informing the mediator. Some mediators allow the parties to write a confidential mediation letter that identifies the issues in the case. If allowed, write a persuasive argument of your client's position. Make sure the mediator is aware of the status of any offers or counteroffers at the beginning of mediation, if applicable.
  • Preparing your client. Most importantly, make sure the decision-maker attends the mediation. Inform your client that mediation is often a long and tedious process. Discuss with your client whether he or she is comfortable making comments in the presence of opposing counsel and the other party, as sometimes the mediator asks for client commentary in the joint setting. Finally, discuss with your client the "bottom line"; alternatives that he or she is willing to take as an acceptable resolution for the case.

Your Prep Work

  • Review all of the files and pleadings.
  • Prepare an opening statement. Remember that most opening statements are in front of your client, opposing counsel, and the opposing client, as well as the mediator. Your opening statement should be persuasive and direct. Use your best judgment about the "tone"; of the opening statement based on the temperature of the case.
  • Make sure that you can explain the issues to the mediator in a clear and precise manner. The better you can articulate your position to the mediator, the better the mediator can articulate your position to opposing counsel.
  • Prepare a mediation notebook. This notebook should include all of the relevant files and pleadings; your opening statement; copies of any offers or counter-offers; pertinent evidence; and three (3) copies of any documents that you might use during the mediation.

Mediation Day

  • Arrive early. Introduce yourself to the mediator. Ask which room is your "caucus"; room and set up. Remember that you are there to advocate for your client and resolve the case, if possible.
  • Take a laptop, USB port with the applicable files and an internet card. Should the parties come to a resolution, you can transcribe the agreement immediately, thereby eliminating issues in the future about the terms of the settlement.
  • Take notes during the entire process. Settlement negotiations are confidential, but the information that you learn can be beneficial to you in the future.
  • Most importantly, make sure that you inform the mediator of when you are sharing information that is "on the record"; versus "off the record."; If you do not inform the mediator that some of the information is for his or her ears only, the mediator possibly could repeat the information to opposing counsel, thereby causing you to lose your advantage if the case does not settle.
  • Regardless of the outcome, thank opposing counsel and their client for attending. Finally, thank and pay the mediator.


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About the Author

Ms. Jones is an associate with Holland Schaeffer Roddenbery Blitch in Atlanta, Georgia and is a member of the Family Law and Litigation Sections of the Atlanta Bar Association and the Georgia Association of Black Women Attorneys. She has also spoken at continuing education seminars about current issues in the labor and employment sector and can be reached at her email address of

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