Summary
What can be accomplished during the time period leading up to a mediation is often underrated in importance. But it is akin to trial prep or even coaching a sports team — success depends in large measure on what is done to prepare before the event itself.
Don’t give up. You may face intransigence from your adversary, or even from your own client, but you should nevertheless persist. Keep the process going, keep talking.
At the end of the mediation session, we can be certain of one thing: You will either settle at the mediation, or you will not. What to do in each scenario.
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Paul Simon counted 50 ways to leave your lover. David Letterman was famous for his top 10 lists. You may choose to count what follows in different ways, especially if you’re obsessed with round numbers, but let’s refer to this as The Top 16 Ways to Leave Your Mediation Feeling Good, knowing that you did all you could have done to contribute to a successful mediation.
You may well think of many other ways to improve the prospects for your mediation. And you may not need to implement all or many of these 16 suggestions to have a successful mediation. Nor does using all of these steps guarantee that the mediation will produce a settlement — nothing and no mediator can guarantee that. But these are certainly things you can consider to enhance the likelihood of a successful mediation.
The 16 ways can be broken down into three time periods: before, during, and after the mediation.
Before the Mediation
What can be accomplished during the time period leading up to a mediation is often underrated in importance. But it is akin to trial prep or even coaching a sports team— success depends in large measure on what is done to prepare before the event itself.
Treat the mediation seriously. Most lawyers do, and this gives them a real advantage over those who treat mediation as an afterthought. Mediation is an important event in a litigation, and warrants an investment of thought, preparation, and strategy comparable to a major hearing or deposition. This, of course, is important only if the parties and counsel are serious about trying to resolve the case. On occasion, particularly when mediation is mandated by a court or is a contractual prerequisite to litigation, parties and counsel may not really be serious about settling. Nevertheless, even then, the mediator should not accept this as a mere “check-the-box” mediation and should not waste the opportunity to see if resolution is possible.
Choose the optimal time for mediation—if you have a choice on timing. This is a Goldilocks conundrum: When is just right? Is it too early to mediate because the parties do not (yet) have sufficient information to make a decision to make a settlement payment or waive their claims? Do they need to wait for a ruling on a dispositive motion? Or is it too late? Many mediations occur very late in the game, after the parties have spent a fortune on legal fees and endured many of the inconveniences and burdens that litigation brings—which may make settlement more difficult. There is no absolute right answer as to when the optimal time is to mediate a case. But like with marriage, it is preferable to mediate when both parties have the right mindset about settlement at the same time.
Select the mediator who you believe will be best for your case. You might consider whether a particular mediator would influence a difficult party—either your client or the opposing party. And think about whether there is a mediation approach or style that you want in a mediator. Some mediators only have joint sessions; others utilize separate caucuses. Some require written submissions; others do not. Some require that the submissions be exchanged with the opposing party; others do not. Some mediators are evaluative; others are facilitative and will not indicate which party they think will win, or what the recovery might be. Bottom line: There are differences in how mediators conduct mediations, so do your due diligence. No law forbids counsel from interviewing prospective mediators (beyond their available dates or rates) or asking for references, although there might as well be given how rarely either seems to happen.
Develop a mediation strategy. Ideally, it should be something more than “we want lots of money” or “we won’t pay a cent.” Make sure to develop your strategy with your client’s participation, or, at minimum, with the client’s clear and express buy-in. Otherwise, you will not be on the same page as your client, which can make the mediation very challenging. Further, the strategy should be developed before submitting the mediation statement, especially if the statement is to be exchanged with the other party. This will avoid the unfortunate real-life situation in which a mediation submission demanded a certain dollar amount, but at mediation, counsel opened with a demand almost twice that amount. Obviously, this requires that you know what your client wants, including non-monetary terms such as the scope of releases, confidentiality, non-disparagement, etc. In connection with your strategy, it’s not a bad idea to walk into the mediation room with a written wish list, so that you don’t forget a key term in the heat of negotiation—unlike counsel in one mediation who forgot to ask for a confidentiality clause, as became apparent the following day when the senior partner called trying to modify the deal.
It is also preferable to know your opening position before the mediation begins, but anyone who has ever had a client knows that is not always possible. Not having an opening position planned in advance, however, runs the risk of substantially slowing down the mediation at the outset. Further, with some caveats, try to know your client’s bottom line in advance. You don’t need to share that with anyone, but it will almost certainly help guide your negotiations.
Use available opportunities to educate the mediator. In addition to the written submissions, most mediators schedule a joint preliminary scheduling or housekeeping conference, and some also schedule separate calls with counsel. These are excellent opportunities for you to inform the mediator about the dispute, the issues, the risks, etc. Keep in mind that you know far more about your case than the mediator likely ever will. Thus, the more information you can share, and the earlier you can share it with the mediator, the better prepared the mediator will be to help you resolve the case. And the separate call, if there is one, is surely a good opportunity to let your mediator know that your client needs to smell the coffee, if that is your assessment.
Prepare a helpful written submission. Reinforcing the preceding point, your written mediation statement should be clear, address the key issues, and arm the mediator with the points that the mediator can use: case weaknesses, risks, costs going forward if there is no settlement, information about past settlement negotiations, and anything else you think would help the mediator. Among the useful information you may wish to include are the current posture of the case, a summary of the applicable law, the relief sought, and any possible non-monetary options or terms.
Counsel often debate whether to hold back certain information from the mediation statement and instead raise the points at the mediation itself. There is no one-size-fits-all answer here, but keep in mind that springing important information for the first time at mediation has the potential to derail or at least delay the mediation. Especially if your adversary is an organization, but even with individual litigants, it may take your adversary time to digest and analyze the information shared for the first time at the mediation.
Dispense with any shrill or ad hominem arguments/language—it’s not productive here.
Finally, be judicious in submitting exhibits to the mediator. For example, don’t submit an entire deposition or trial transcript unless essential, and then make sure to indicate the key portions.
Prepare your client for the mediation. This is extremely important. Ensure that your client, whether an individual or a business, understands what mediation is, how it differs from litigation, and the role of the mediator. Further, explain that the mediator may well push for movement in positions, and may point out problems with your case. Your client should not be offended nor conclude that the mediator is antagonistic to your client’s position and instead should listen to and consider what the mediator has to say.
Explain, too, that mediation is not the place for you to be the fire-breathing dragon that you would be in deposition or trial—if your style is to breathe fire.
Make sure that your client understands that mediation requires time, patience, and lots of sitting around. If they press why it takes so long, remind them that mediation is a process of adjusting positions and expectations, of trying to get the other side to come closer to where you are, and that human nature requires time to get there.
Further, your client should be prepared to be flexible and realistic, and to anticipate the roller coaster that mediation often becomes; it’s rarely the Ohio Players’ “Love Rollercoaster.” (Though both in-person and virtual mediation have their ups and downs, and both can be quite stressful, one of the advantages of virtual mediation is that it can be less stressful on the participants, who can be more comfortable in their own surroundings, without the hassle of travel or the angst of being physically near their adversary; a less stressed party may find it easier to make decisions.) And your client should be reminded to be respectful and courteous in joint sessions—no eye rolling (or worse) when the other party/counsel is speaking.
Finally, if you think it would be helpful—whether to start the process of building rapport between your client and the mediator, or for the mediator to start adjusting expectations in a less stressful setting—ask the mediator to schedule a call with you and your client before the mediation.
During the Mediation
Change your mindset and demeanor. As noted above, mediation is not the time to be an aggressive, hard-nosed litigator. You can still be firm and represent your client zealously, just without the edge.
Be careful with opening statements. The Hippocratic Oath should apply to mediations, because all too often, opening statements do more harm than good. Indeed, some mediators discourage opening statements unless there is a compelling reason otherwise. Too many counsel/party opening statements are like Molotov cocktails (or may be perceived that way by an adversary sensitive to sleights) that will inflame the other side and cause the mediator to have to spend hours (that you may be paying for) putting out the flames, just to get back to square one. Remember, you’re trying to persuade your adversary to give up something, and they’re more likely to do so if you don’t annoy them.
Make an opening offer or demand that makes sense. Your opening position should be tied to the facts and reality and be legally sound. The opening gambit should be a position that you can explain because you’re asking the mediator to turn around and explain it to your adversary. If you’re the plaintiff, all of the damages components should be legally recoverable.
Stick with your strategy. Of course, you may need to make adjustments along the way, but don’t get thrown off your strategy in response to what the other side says or does as an automatic emotional reflex.
In the same vein, if your adversary is an organization, neither you nor your client should be thrown by the individual who appears as the corporate representative. Certainly, the optics of whom the organization chooses to send to the mediation can be distressing if you or your client perceives them not to be the right person — whether too junior, not knowledgeable, or for some other reason. And if you’re the lawyer representing the organization—if you do have a choice of representative, in addition to the ubiquitous requirement that the rep have full settlement authority—aim for someone who understands the game and, as importantly, is in a position within the organization that will convey to your adversary that your client is taking the mediation seriously.
Finally, resist the urge to succumb to the Reverse Golden Rule of Small Moves, which says that if your opponent starts making insultingly incremental moves during the negotiations, you will do to them as they did to you and also make very small moves. Don’t feel obligated to match your adversary’s very small moves (though obviously, you cannot throw in the cards and get close to your final number by continuing to make reasonable moves while your opponent persists with nickel-and-dime moves). The only one who may benefit from a small-move contest is the mediator who charges by the hour.
Keep your client in the game throughout the mediation. Take along snacks, water, reading (maybe crosswords), or other items to keep them comfortable and avert boredom. And try to ensure that your client never looks or sounds desperate, even in the separate caucuses, because the mediator will likely notice. In one mediation, the client rep was rubbing his hands and head anxiously during the caucus, and blurted out a question to the mediator: “Will they settle for $30 million?” That was a much higher number than was in play at the time, but, unsurprisingly, the case ended up settling for exactly $30 million.
Don’t hesitate to share your ideas with the mediator. If at any point you have ideas about how to settle, how to break an impasse, or how to get the other side (or, for that matter, your own client) to move, please don’t hesitate to let the mediator know. Text, call, or pull the mediator aside. While the mediator may not adopt your ideas, your mediator should welcome your input and perspectives— after all, you know the case, your client, and your adversary better than the mediator possibly can.
Above all, persist. Don’t give up. You may face intransigence from your adversary, or even from your own client, but nevertheless, you should persist. Keep the process going, keep talking.
End of the Mediation
At the end of the mediation session, we can be certain of one thing: You will either settle at the mediation, or you will not. What to do in each scenario?
If you do settle: It is critical to get as much of the settlement in writing as possible, signed off on by everyone, before you and the other side leave the room. Of course, everyone is tired and wants to leave, but at a bare minimum, insist on a detailed term sheet signed by all the key players. The gold standard is to have a laptop and a settlement-agreement template, so that all that will remain to be done if you settle is to insert the payment terms and any other case-specific terms. (You might wish to share the template with opposing counsel in advance of the mediation—it both shows that you and your client are earnest about settlement and may serve to identify early on any disagreements over the terms in the template.)
If you don’t get the deal inked quickly, the settlement can either unravel completely or take weeks or months to nail down a final settlement agreement.
And if you don’t settle at the mediation: Don’t wring your hands, curse your opponent (or your client, or, heaven forbid, the mediator), engage in self-flagellation, and give up. No! Persist! This happens frequently, and many of these cases will, with a little effort, settle in the days and weeks after the mediation. Often, with the benefit of a few days to think about the situation, the parties will reconsider and recommit to settlement. Some mediators, as a matter of course, will tell the parties that they will circle back in a few days to see if follow-up shuttle diplomacy might work. However, if your mediator doesn’t do so, and your client is still interested in settling but doesn’t want the other side to think you’re desperate, here’s a suggestion: Ask the mediator to take the credit and check in with both parties, without betraying that you instigated the follow-up.
At this post-mediation stage, it is especially essential to keep the momentum going. If you don’t move quickly, it is all too easy for the parties to stew, simmer, remember grievances, and decide that they will never settle.
There you have it: one mediator’s list of 16 ways to leave your next mediation feeling that you did all that you could to contribute to a successful mediation for your client. Good luck mediating!
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N.B. The views expressed herein are those of the author and do not reflect the positions of the courts for which he has the privilege to mediate.
©2026. Published in the ABA Litigation Newsletter, June 29, 2026, by the American Bar Association. Reproduced with permission. All rights reserved. This information or any portion thereof may not be copied or disseminated in any form or by any means or stored in an electronic database or retrieval system without the express written consent of the American Bar Association or the copyright holder.