Most mediation advice for advocates focuses on the mechanics and strategy of the mediation itself. But, as crucial as the face-to-face interaction with the mediator and your opponent is, your preparation for the mediation can be every bit as important—and can mean the difference between a satisfactory settlement and failure.
Prepare a Case Memo for All Parties
This includes the mediator and your opponent. Your mediator will be thrilled to have the entire case summarized, and a clear, straightforward recitation of your facts and arguments will frame your position nicely for the mediator. But the best reason to prepare a mediation memo is that it helps to persuade the other side. Opposing counsel will understand that you are going to be thoroughly prepared for trial if it comes to that. If counsel allows the party to see it, it may be the first glimpse the party has of your case—and your first chance to help the opposing party begin to doubt the merits of its own side.
This is the best place to reveal that fabulous fact or case you've found, rather than waiting to spring it at trial; after all, only 2 percent of cases actually go all the way to trial, so use the information to your advantage at this stage instead of holding onto it. If the information is truly confidential, consider writing a separate note to the mediator, revealing the information but withholding it from opposing counsel.
Create a Timeline
Unlike a jury in a trial, a mediator will cull through the information provided by both sides to create a timeline, so the mediator is sure he or she understands the case. Make the mediator's life easy—and gain the advantage of first impression—by creating your own timeline and sharing it with the mediator before the proceeding.
Keep the timeline simple and neat. Too many dates or complex callouts dilutes its effectiveness at this stage. Focus on the key dates and, most important, on the sequence of the dates and the intervals between them. Focus intensely on the story this high-level timeline tells.
Prepare Diagrams and Other Visual Aids
A simple car accident can be shown so clearly and simply in a diagram. Photos of cars, scars, hardware, Google Maps aerial shots, Facebook pages, key chart entries, electrocardiogram tracing, and other demonstrative materials—all of these are readily available, can be extremely persuasive, and will show the other side that you are already substantially prepared for trial.
Organize the Documents and the Key Facts
Rather than bring a stack of original documents into the mediation to hand over to the mediator, consider beginning with a summary statement that pulls out the key facts and figures from all of the documents and assembles them in an easy-to-digest manner. Attach only the page or section that shows the information, rather than thick documents. For caselaw, pull out the relevant quotations with cites rather than attach a stack of cases. Have full copies available should the mediator ask to see them—but spare the mediator as much of the voluminous paper as you can while still getting your full story out.
There's nothing more disappointing than ending a long day of mediation with an agreement only to have it fall apart afterward. Have the ultimate decision-maker ready to make that decision. It's best if the person is physically present at the mediation; that way, the decision-maker also has a firsthand sense of the atmosphere and the intangible momentum and emotions that often drive progress toward an agreement. It also signals to the mediator and the other side that you are serious about reaching an agreement that day. If this is impossible, telephone availability is a distant second-best option. But be certain you will be able to reach that person no matter what time the call goes out.
In the same vein, be sure any lienholders are identified and lined up. Know in advance what parameters, if any, the lienholders require, rather than wait until after the mediation (and your tentative agreement) to find out bad news. Be sure you know the full scope of insurance coverage and tenders. If you need to involve coverage counsel or workers comp counsel, then do so. It's far better to know this going in than to deal with these issues after you've negotiated an agreement.
Review the Jury Instructions
The rules that will govern the jury's deliberations should be your frame for the entire case. Be sure you understand them and how they would impact your case at trial. Look for additional lines of attack on your opponent's case, too, so you can add these arrows to your quiver for the mediator.
Prepare Releases, Stipulations, and Dismissal Orders
You should know what you want to get out of an agreement and prepare the writings ahead of time. Where a term or amount is the subject of the mediation, prepare as much of the document as you can, leaving room to drop in the agreed-upon term. The best scenario is to have each party and counsel physically sign off on the entire agreement before adjourning the mediation, and this is more likely to happen at the end of a long day of arguing if almost all of the document is already prepared. Preparing the documents will help you focus on every minor detail at stake, gives you the drafter's advantage, and will make your mediator grateful.
If you can follow the above suggestions, you'll not only be prepared for the mediation, you'll signal to the mediator and opposing counsel (not to mention your client and the other party) that you are prepared, in full command of the facts and law, and a formidable advocate. And that will help make the entire proceeding go your way.