Your First Mediation

  • September 25, 2023
  • Jill Lewis

Mediation is a crucial step of litigation and often where many cases settle. In the following article, I outline the tips I would provide to any young lawyer heading into mediation.

Prepare Your Client

Before attending mediation, book a pre-mediation meeting with your client. During this meeting, review the process and what they can expect. Explain to them what mediation is (an informal and without prejudice opportunity to settle a case) and what it is not (discoveries).

Points to review with your client in advance of mediation:

  • Encourage them to have a support person. If a support person is attending, all parties need to be aware, and the individual will need to sign a confidentiality agreement.
  • Be comfortable. Remind the client this is not court and therefore less formal attire is welcome. Most mediations remain virtual, but still remind your client to have snacks and water nearby.
  • Test their Wi-Fi and technology before the day of mediation.
  • Discuss Zoom-fatigue. Let your client know that once an offer has been sent to the other side, the client could be waiting 30-45 minutes for a response. During this time, it is recommended to turn the camera/mic off to take a virtual break.
  • Joint sessions. Does your client want to speak to the other side? Some mediators will suggest a joint session at the beginning. Discuss this with the client and if they are not interested, let the mediator know in advance.
  • The mediator is not your client’s advocate, so some things will need to remain confidential. Remind the client that the mediator’s client is the deal.

The most important thing you can discuss is a potential settlement. This takes time as you need to review all the numbers with the client — the best-case scenario at court, the likely scenario, and the worst-case scenario at court. If you are on for the plaintiff, you typically sued for an exaggerated amount of damages out of precaution. Clients can get caught up with the idea that they reduced their initial request by tens of thousands, and sometimes hundreds of thousands, of dollars, so why isn’t the defendant increasing by more. Remind your client that this should not be the scale by which to compare success.