Mediation as Legal Counsel

As counsel for a party to a civil (non-family) mediation, your preparation will typically involve:

Preparing Summary Report

At least one week before the mediation starts, most mediators want to receive a summary of:

  • The facts or circumstances that led to the dispute
  • The issues in dispute
  • Your assessment of the matter
  • The history of court proceedings and negotiations between the parties, including proposals for settlement

The report should be a brief, objective narrative of relevant facts. It should inform rather than advocate.

Sharing Information

Sharing information in mediation is informal. However, it is important to have an information exchange process. It may also be appropriate to outline the process in the agreement to mediate.

Preparing Your Client

Mediation focuses on the needs and interests of clients, not on their legal rights. Mediators should encourage clients to take an active part in the mediation. This is the client’s opportunity to be heard and to listen to the other side.

Make sure you and your client understand your client's goals and interests outside of the legal claims. Discuss what the interests of other parties might be and consider scenarios or options that might meet those interests.

Unlike court, mediation is an opportunity for creative problem-solving.

Ensure the person attending the mediation:

  • Knows the facts of the case and is aware of the issues
  • Is prepared to make a brief informal opening statement
  • Has authority to settle the dispute
  • Knows what to expect
  • Knows the costs, risks and benefits of not settling the dispute

Confirm the date, time and location of the mediation with your client. Consider who else might, with the consent of other parties, attend the mediation. Always ask “who needs to be at the table?” and “who can make or break this deal?” Occasionally, for example, the presence of a neutral expert might help the negotiations.

Preparing Your Case

Mediation is not adversarial. It is a negotiation that presents a great opportunity to resolve a dispute to the satisfaction of all parties. You are more likely to settle the case when you understand its strengths and weaknesses, both on the facts and in law.