Preparing for commercial or environmental mediation should be taken as seriously as if you were preparing for a trial. After all, mediation may be the end of the case for you and your client. By taking certain steps, you will increase the likelihood of a good settlement—which means you will have a very happy client.
Many attorneys underestimate the importance of preparing their clients for mediation. Mediation becomes so second nature to attorneys that they forget how scary it can be to clients. Explain to your clients how settlement discussions are confidential, and how the mediator cannot be called to testify should the case end up going to trial. When you sit down with your clients and prepare them for mediation, they can relax just a bit and focus on the ultimate goal of mediation—settlement.
There is more than one way to prepare for mediation. Certainly you should review your entire file. Go back over your pleadings, motions, discovery, and any notes you have taken throughout the case. You will likely need to refresh your memory on the facts.
As you go through your file, make a separate folder just for mediation. In this folder, include copies of all documents that you feel are relevant to settlement discussions at mediation. Include extra copies that the mediator may hold on to during the mediation. You may organize this folder however you like; just be sure that you are able to quickly refer to it during mediation.
Most importantly, sit back and think about your client’s situation. Are there aspects of that situation which are not directly dealt with in the lawsuit but are critical or highly valued by the client? If so, mediation is an opportunity to work into a settlement some things that would assist the client going forward. Do not hesitate to discuss this subject with the client, as it may illumine aspects of the situation you had not previously appreciated. A creative approach to the mediation can result with reasonable satisfaction on all sides of the table. That is certainly something to aim for.