Let’s face it. Trials just don’t happen very often for most of our practice areas. Increasingly, trial is becoming an unusual way to resolve a case, not the natural ending to a dispute. To purloin a phrase used by fellow mediator Myles Hassett, “mediation is the new trial.” And as with trial, an attorney should be well-prepared for mediation.
As a mediator, I’m surprised by how often lawyers are not prepared for mediation. Many times, when I read parties’ mediation memoranda, I get the distinct impression that they expect me, as the mediator, to figure their case out, make their best arguments, and get the case settled favorably for them. I’m good, but not that good. A mediator can only whittle and cajole the other side so much with the tools he or she is given.
It is better by far to see mediation as the true end-zone for a case. Prepare for mediation as if it was trial. Know what your witnesses will say and what the other evidence shows, and reliably and honestly communicate that information to the mediator. As someone who has been fortunate enough to have had success in the vast majority of his mediations and as a mediator trying to help others achieve the same success, there are several things that good advocates do in advance of (and during) mediation. It really boils down to three things, all sharing a common denominator: PREPARATION.
First, prepare yourself. Knowing your case better than anyone ever will goes without saying (though it’s surprising how many lawyers don’t have this baseline level of knowledge), but don’t stop at knowing your facts and legal theories. Master them. Make yourself the definitive expert on all issues germane to your case.
Preparing yourself means more than just knowing about the legal claim. Understand the case holistically. Identify threats to resolution that you can address in advance. Are there third-party interests that must be addressed as part of any resolution? Will all the decisionmakers be at the mediation? Does your client have reasonable, informed expectations? How can you get ahead of these obstacles so that they do not impede progress? Can those same obstacles turn into negotiation advantages; with your client, third parties, or the other side? Being ready to mediate means being ready to make a deal, and knowing what the right deal is and how to bring closure to all interested parties.
Second, prepare your client. Do not show up at mediation and explain to your client for the first-time what mediation is. Get your client comfortable with the process, what it can do, and what it cannot do. Introduce your client to the mediator, or, failing that, inform your client about the mediator. Establish trust in you, and in the process. Trust is key, and it goes a long way. Help your client understand the risks he or she faces. Help him or her understand what it means not to resolve the case, and what the economic impact of that may be (good or bad). Never underestimate—or fail to educate your client on—the emotional and psychological value of closure. The economic value of closure may be different for everyone, but the peace having an end to litigation works on body and soul is universal.
Finally, prepare the mediator. Don’t leave the heavy lifting to the mediator. The mediator’s job is to help the parties see things a different way, and to explain risk and the benefit of resolution. Dumping ten deposition transcripts on a mediator a few days before the mediation and expecting the mediator to comb through for helpful kernels isn’t realistic, and it’s just lazy lawyering. It’s your case. Show the mediator the evidence, don’t simply tell the mediator about it. Give the mediator the tools he or she needs to be your advocate in the other room. Come prepared to make a deal, and to make reasonable concessions. Let the mediator really get to know your client and your case. And share your mediation memorandum with opposing counsel. It makes the mediator’s job much easier when he or she can share the key strengths of your case with the other side using your actual words. Moreover, exchanging memoranda allows both sides to directly understand the key points they need to address at mediation.
There really is no secret sauce to mediation, but, without proper preparation, one will not get the best result possible under the circumstances. Do the work early, so the mediation process can work and get your case resolved.
about the author
Shannon Clark is a shareholder at Gallagher & Kennedy and Co-Chair of the firm’s Plaintiffs Personal Injury Department. Shannon was named by Best Lawyers as “Product Liability Lawyer of the Year” for plaintiffs in 2022 and 2024.
In addition to his robust trial and appellate practice, Shannon advocates for clients injured by defective products, including, insulin pumps, IVC filters, hip and shoulder implants, tires, seatbacks, fuel containment systems, SUV roofs, airbags, electronic acceleration controls, firetruck ladders, consumer devices, and many others. Shannon has obtained significant settlements and verdicts for clients in Arizona, California, Florida, Kentucky, Maine, Mississippi, Montana, New Mexico, New York, Nevada, Ohio, South Carolina, Texas, Virginia, Washington, D.C., and Wyoming.