• Be Prepared. Parties should be well versed in the facts, liability issues and
  • Know the strengths and weaknesses of your
  • Do not be an adversarial, aggressive advocate- be open minded and collaborative.
  • Focus on client interests and goals, as opposed to Interests are a parties underlying needs, concerns, reasons, values, and goals.
  • Prepare any evidentiary materials and bring copies of all documentation that may aid in reaching settlement.
  • Communicate with your adversary before the first session and between sessions.
  • Make sure all decision-makers have the authority to settle including insurance personnel.
  • Make sure all key parties to the case and decision-makers are
  • Be honest, open, and keep voices
  • Be courteous, civil, and We can agree to disagree without being disagreeable.
  • Respect the process- give it your full attention. No use of cell phones during the mediation except to speak to decision-makers.




  • The initial session will be an attorney-only conference call or Zoom conference to discuss the details of the case from the counselors’ perspectives.
  • Discussion of confidentiality of conversations and documents submitted.
  • Disclosures, if any, about relationships with parties or counsel.
  • If new client, confirm that they have my website address and/or CV, and mention my practice specialties and experience.
  • If pro se, explain disadvantages and ground rules and send any special agreements.
  • Confirm whether it is private mediation or through a provider.
  • Discuss the mediation submission agreement and retainer if it is private mediation.
  • Tell me about the case and key issues as you see them.
  • Tell me about your client(s):
  • If individual- age; education; sophistication in subject matter (i.e., securities, real estate, etc.); financial profile.
  • If company, brief history; names and backgrounds of principals.
  • Lawyer’s history and relationship with client, if any previously; relationships between parties.
  • Tell me about the opposing party and counsel –  see above for parties, and explore relationship between and among parties; for lawyers, explore any previous encounters and the status of the current relationship.
  • Explore counsel’s current opinions on strengths and weaknesses of both sides.
  • Inquire about obstacles to settlement and whether there are any special circumstances that may impact settlement.
  • Have there been any settlement discussions? If so, when; who initiated; specific offers and counter offers, and the time frame.
  • What is the status of discovery? Do you need anything by way of documents you have not gotten to make a proper evaluation of the case? Does the other side need discovery? What have they requested that you are not giving?
  • What is the trial date? How much time is reserved?
  • Mediation memorandum (see below).
  • Documents- review list of the documents identified when counsel was talking about the case and the key issues, review lists of the usual documents by subject matter. Inquire about court documents that may be useful like motions, briefs, and rulings. Ask about experts and expert reports as well as damage analysis.
  • Describe the usual procedure for the mediation: mediator to open, disclosures, discussion of ground rules for session, confidentiality, fees, etc. Discuss whether there will be a joint opening session or not, see if there are any reasons not to have one. Unless there is a reason, hold the joint session and urge client participation, and make the same request of the other side; get counsel’s input and OK; describe the ground rules for joint session presentations.
  • Is there anything else we should talk about, anything else that I should know?
  • Think of your clients’ real interests and how best to serve them, think of creative options for settlement, make sure your client knows that mediation resolves the case forever, but usually both parties are a little unhappy with the result. Advise I may call you if I have some additional questions after I receive your documents, confirm the start time, place, and date of the mediation.
  • I look forward to working with you. Thanks for the time.


















Prior to the mediation, unless otherwise agreed by the parties, at least 3 business days before the first scheduled session, each party shall prepare and send via email, a mediation statement limited to 3 pages with the following 6 bullet points:


  1. The essential facts and law, focusing on your client’s interests and goals as opposed to positions.


  1. Your client’s economic and non-economic interests, economic losses, maintaining relationships, having a sense of closure and fairness.


  1. What will your adversary say are your case challenges?


  1. Why are you at an impasse?


  1. For instance, identify any discovery concerns or other resistance.
  2. If applicable, identify any concerns with power imbalances.


  1. Status of settlement negotiations and reasonable settlement


  1. Names of persons, in addition to counsel, with full authority to resolve the matter who will attend the mediation.

Upon agreement by all parties only, these mediation statements shall be subject to the confidentiality of the mediation process and treated as documents prepared “for settlement purposes only.”