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How To Succeed In Mediation Without Trying…Your Case: A Checklist For Effective Advocacy In Mediation

Jack EsherDuring the three decades in which I have been mediating cases, primarily in the areas of commercial litigation and bankruptcy, I have come to see how effective it is when counsel come to the table with thoughtful preparation for the session. The checklist below provides a guide to approach mediation in this most effective way for a successful outcome. The checklist is broken into three stages: preparation, participation and resolution. Stage One focuses on how to prepare the case for the negotiation and your client for mediation. Stage Two highlights priorities while participating in the mediation. Stage Three speaks to implementing a consensual resolution.

pdf_iconLack of preparation can readily derail a mediation. In a recent mediationI conducted, one of the attorneys acted as if the mediation was merely a beginning meeting. The attorney was not prepared or well-versed in the documents and facts of the case. Several problematical things resulted from this. Initially, the other side thought the opposing party had not come in good faith, and it took a long time to get the process on track. By then, it was clear that homework needed to be done and a second session scheduled, which added time and cost to the process that could have been avoided had the attorney come fully prepared to settle the case.   It was fortunate that the case got settled, but this “false start” led to a less optimal outcome for that party.

Stage One: Preparation

Prepare for the negotiation of the case: mediation may best be described as assisted negotiation. To negotiate effectively, preparation is key.

  • Consider various options, whether acceptable or not, that could exist to satisfy your client’s interests and then those of the other parties
  • Determine the possible Alternatives to a Negotiated Agreement (what happens if you do not reach agreement). The “Best” Alternative is referred to as your BATNA
  • Compare your options for agreement to your BATNA – the mediation should result in something that is better than the BATNA. Often, particularly in Court-ordered ADR processes for groups of similar matters such as tort claims, the only alternative is litigation, so the time, cost, publicity, diversion from other work and risk of loss are the primary factors to compare to the prospect of a negotiated agreement
  • However, by identifying the underlying interests or needs of your client, and then of the other parties to the dispute to the extent you know or can speculate, you may be able to think of more options. A common example is a dispute between parties with an ongoing relationship or the possibility of restoring one that would otherwise be only about a monetary claim one is making against the other – terms relating to future dealings can become the foundation of an agreement that includes resolution of the claim
  • Consider how best to begin the negotiation process within the mediation, allowing for principled concessions to be made during the day to arrive at a preferred resolution
  • Especially in preference actions, getting the relevant documents and analyzing them in advance of the mediation will generate possible options for settlement and can even lead to a settlement prior to the mediation session.

Prepare the client

  • Explain the process
  • Anticipate what to expect and to expect the unexpected/be flexible
  • Go over any necessary Ground Rules – how best to participate
  • Generally, a client should not react to settlement proposals before private consultation with counsel. The client should be counseled that not every statement by an opponent, whether true or false, requires an immediate response. The client should relate facts when appropriate, but should not engage in argument. The client should listen carefully to all statements and should not interrupt
  • Identify Goals – beyond the obvious goal of getting the case settled, other less obvious goals can yield significant benefits and should be recognized. Somse of the most common ones are to facilitate communication; obtain a more comprehensive understanding of the risks and costs of litigation and of opponent’s case; use the mediation as an opportunity to present the case in a more persuasive manner than litigation would normally afford, focusing on fairness, equities and other underlying concerns
  • Identify any issues regarding authority to settle and develop strategies to prevent them from becoming an obstacle to reaching a settlement – for example, Board authority could be delegated to a small working group to be available by phone to consider proposals that may exceed initial settlement authorization

Preparing your client for what the other side will present in an attempt to be persuasive, what is important to both sides and what options may work for both sides can significantly streamline the negotiation process at the mediation table.

Prepare for the Mediation Session

  • Select the Mediator (if not pre-appointed by the ADR process) – see below
  • Schedule the Mediation, confirm identity of attendees. It is important that everyone understand who will attend and who the decision makers will be to avoid the beginning of the mediation focusing on who is at the table and if anyone can make a decision
  • Prepare the Mediator: Pre-mediation Submission/Mediation Statement: it is helpful to bear in mind that the mediator is not a deciding authority for the case
  • Apart from preparing submissions to be persuasive on the legal issues, they should also explain the conflict and point out special considerations, ensuring that the agendas of each party are understood by the mediator and the opposing party prior to the first session. Certain potentially prejudicial material may be submitted confidentially to the mediator if it is thought that it should be understood by the mediator at the outset
  • Determine tone and theme for first session: prepare your Opening Statement with a view to being persuasive (as opposed to overly positional) to the client on the other side of the table
  • Review and sign Mediation Agreement with adequate confidentiality provisions

Some key points to consider when selecting a mediator include:

  • Mediation experience (how many mediations they have conducted, how many in the particular field of law involved, how many involving the specific issues in the case within the field of law, and how long they have been a mediator);
  • Experience in the field of law involved (in addition to mediation, what background do they have in the field);
  • Involvement in the field (are they published or are they known in the field and as a mediator in that field);
  • Availability (scheduling is difficult to begin with and can be moreso with a mediator who has limited availability);
  • Reputation (what is said about them by those who have worked with them previously) – most mediators will be glad to provide references; and
  • To what degree is evaluation preferred over facilitation, and where the proposed mediator falls within that spectrum (in general, elements of coercion are more likely to arise with evaluative mediators). I have found that the problem-solving approach I and many colleagues I know use is an effective balance, and recommend that style where both parties have competent, knowledgeable counsel.

Stage Two: Participation

  • Determine Seating: Focus on control of your side and ability to observe everyone/make eye contact
  • Establish tone: Be moderate in positioning and formality
  • Deliver Opening Statement: purpose is to explain what is important to your client in an effort to persuade the opponent
  • Use the mediation as an opportunity to obtain information: open-ended questioning skills, not cross exam
    • What is important to the opposing client?
    • What options is the other side considering?
    • Is the other side more interested in settling or going to court?
  • Present key documents and evidence as warranted, bring extra copies
  • Maintain credibility and productivity: use principled negotiating
  • Remember to clearly identify confidential information to the Mediator before concluding any private caucuses
  • Focus on options that will fulfill the needs of clients on both sides to greatly increase the likelihood of reaching an agreement

Stage Three: Resolution

  • Determine any necessary settlement terms and documents in advance
  • Come with a form of Settlement Term Sheet Agreement if there are specific provisions that are important that may be difficult to write down at the end of a successful mediation
  • Fill in Term Sheet Agreement and have everyone present execute it
  • Identify who is responsible for what follow-up: g., preparation of detailed Settlement Agreement, Releases, and/or Motion to Approve Compromise

Thorough preparation for mediation will allow you and your client to utilize the opportunity to its fullest. I have found in my work that there is a direct correlation between the amount of preparation for mediation and the likelihood of a successful outcome.


Jack Esher is a mediator and arbitrator with MWI in Boston, Massachusetts. His recent engagements include serving as a primary mediator for large, derivative contract cases in the Lehman Brothers and as a mediator in the Nortel, Circuit City and Enron cases. A mediator and arbitrator for over thirty years, he founded the American Bankruptcy Institute’s Committee on ADR in 1994 and authored the first Mediation Manual published on commercial insolvency matters (ABI, 1996), now accompanied by his co-authorship of the acclaimed ABI Guide to Bankruptcy Mediation (ABI, 2nd Ed. 2009). Some of the material in this Checklist is drawn from the Manual and the Guide. Additional information about Jack Esher can be found at www.mwi.org/bankruptcy.

By Jack Esher