Most mediations don’t fail because the case is too difficult or the parties are too far apart. They fail because someone showed up unprepared. A day of mediation represents a significant investment of time, money, and emotional energy for everyone involved. When one side isn’t ready, that investment gets wasted, and the dispute drags on toward trial or binding arbitration with all the financial, emotional, and time costs that come with it.
1. Know Your Case from Both Sides
This sounds obvious, but it’s where preparation breaks down most often. Seasoned litigators walk into mediation knowing their own case cold. They can recite the key facts, the favorable documents, and the strong deposition testimony. What catches people off guard is how little time they’ve spent thinking about the other side’s case with the same rigor.
Effective mediation preparation means sitting with the uncomfortable parts of your case. Where are the facts soft? Which witnesses will present problems at trial or in an arbitration hearing? What arguments does the other side have that a judge, jury, or arbitrator might find persuasive? A mediator will ask these questions in caucus. If you haven’t thought them through beforehand, you’ll spend valuable time at the table getting oriented instead of negotiating.
2. Understand What Your Client Actually Needs
There’s often a gap between what a client says they want and what they need to walk away feeling like the dispute is behind them. A plaintiff may insist on a specific dollar figure, but when pressed, care more about an acknowledgment or a change in business practices. A defendant may say they’ll never pay a dime, but actually need the dispute resolved before a board meeting or a financing round.
Having that conversation with your client before mediation, not during it, opens up room for creative solutions. The more clearly you understand your client’s priorities (and which ones are flexible), the more options become available at the table. Some of the most durable settlements come from addressing interests that never appear in a complaint or an answer.
3. Build a Realistic Picture of the Alternative
Every negotiation happens in the shadow of what comes next if it fails. Before mediation, take an honest look at the financial, emotional, and time costs of continuing the dispute. What does the remaining discovery look like? How much will expert work cost? How far out is the trial or arbitration hearing date, and what happens to your client’s business or life in the meantime?
This isn’t about scaring your client into settling. It’s about making sure both you and your client have a clear-eyed understanding of the real cost of the alternative so that any settlement offer can be evaluated against something concrete, not an abstract sense that you’ll “do better at trial.” Mediators with litigation and arbitration experience will test your case on exactly these points, so it’s better to have the answers ready.
4. Prepare Your Client for How Mediation Works
Clients who have never been through mediation often come in expecting something closer to a trial or expecting the mediator to issue a ruling. When they realize the process involves patience, compromise, and back-and-forth that can stretch over hours, frustration sets in quickly. That frustration can derail a negotiation that might otherwise have produced an outcome that served both sides’ needs.
Take time before the session to walk your client through what the day will look like: joint sessions; private caucuses; the role of the mediator; and the reality that opening offers are rarely close to where things end up. Let them know that the process can feel slow, and that’s by design. Clients who understand the rhythm of mediation are more engaged, more flexible, and more likely to make the decisions that lead to resolution.
5. Bring Someone with Authority to Say Yes
This is one of the most common and most avoidable problems in mediation. After hours of productive negotiation, the parties reach a number or a framework that could resolve the case, and then someone says, “I need to run this by my manager” or “the board has to approve anything over a certain amount.” The momentum stops. The other side feels like their time was wasted. And the window for settlement can close.
Make sure the person with actual settlement authority is either in the room or immediately available by phone. If corporate approval thresholds are involved, get pre-authorization for a realistic range before the mediation date. Few things undermine the process more than discovering at the end of the day that the person across the table couldn’t have said yes to anything.
Set Yourself Up for a Productive Day
Mediation works best when both sides come prepared to engage honestly with the process. The five items above aren’t complicated, but they require intentional effort before the session, not during it.
Chris Vernon has spent decades litigating and arbitrating complex disputes, and he brings that firsthand perspective to every mediation he conducts. His goal is to help parties find creative, durable resolutions, and that process works best when everyone arrives ready to negotiate.
If you have a case that could benefit from mediation, you can learn more about our approach and view Chris’s availability here.