Mediation is an essential part of litigation, but it can be a confusing process for parties involved in a lawsuit. However, by understanding a few key aspects of mediation, you can approach the process with confidence and clarity. Mediation is a non-binding process where the parties hire an independent mediator, often a retired judge or experienced attorney, to help facilitate a settlement. Below are five critical points to help you navigate mediation successfully:

1. The Mediator’s Role Is to Make You Uncomfortable About Your Case

As I’ve discussed in previous posts, the mediator’s primary job is to get the case settled, not to favor one side or give you a sense of how strong your case is. Mediators aren’t there to be your friend or to validate your perspective—they’re there to find a middle ground between two adversarial parties who both think they’ll win in court. To achieve this, mediators will challenge both sides’ assumptions and highlight the weaknesses in each party’s case.

When a mediator seems to attack your position, it’s important not to take it personally. They are doing the same thing with the other side, working to move both parties toward compromise. Their critiques are strategic and part of the negotiation process—they aren’t necessarily a reflection of the mediator’s actual views on your case’s merit.

2. Set a Bottom Line and a Goal Before Entering Mediation

It’s crucial to establish your “walk-away” number before entering mediation. However, experienced negotiators know that having both a walk-away threshold and a goal is important.  Having a goal for the mediation as well as a walk-away number helps parties negotiate more effectively. 

That said, flexibility is key. While it’s important to know your limits, parties should also be prepared to reevaluate their goals if the case won’t settle within the pre-determined range. Staying open to adjustments during mediation can increase the likelihood of reaching a resolution.

Finally, remember, mediation is not binding.  Parties can end a mediation at any point if they do not agree with the negotiation tactics of the other party, or if they numbers are clearly not within the pre-determined set walk-away number. 

3. Know Your Mediator

Your attorney should have some information about the mediator before going into a mediation.  Often times attorneys have sued the mediator to help revolve prior cases.  Sometimes, if your lawyer has not used the mediator before, your lawyer can gather information about the mediator.  I generally like to know the following about the mediator and prepare my clients what to expect on the following items:

  • What is the mediator’s negotiating style?  Mediator have different styles, some are aggressive and combative (see point #1 above), and that is just their style.  Others take a friendly approach giving the impression that they are on your side and are here to help resolve the case.  However, clients always need to remember point #1 above. 
  • Clients need to understand the mediator’s background.  Is the mediator a retired judge?  If so, where did they preside? What types of cases did they preside over?  If they are an employment attorney, were they typically a plaintiff’s attorney or defense attorney?  If the mediator does not have an employment law background when mediating an employment law case, I think that is very important to know as well. 
  • What tools does the mediator like to use to move through impasses?  Will the mediator move to negotiating brackets? Do they like making mediator proposals?  See below for more information on these tools. 
  • Does the mediator stress facts or do they quickly move into negotiating numbers?
  • If the case does not settle at the mediation, how good is the mediator about following up with parties to try to keep settlement discussions continuing after the mediation? 

4. Understand Different Negotiating Tools Used in Mediation

Before the mediation, work with your attorney to understand the negotiation tactics that may come into play. Mediators often use strategies designed to help the parties move closer together. Here are two common tactics:

  • Negotiating by Brackets: Instead of offering a single number, one party may suggest a bracket.  So instead of offering a number as a counteroffer, the party would offer a range: “If you agree to come down to X, I’ll agree to go up to Y.” The midpoint of the range is typically seen as a hint of where the party is willing to settle. Think carefully about how to respond to such proposals and understand the strategies needed when negotiating brackets.  Some mediators will inform the parties not to look at the mid-points of the ranges, while others will indicate that the mid-points are basically where the party is willing to go to in negotiations. 
  • Mediator’s Proposal: If negotiations hit an impasse, the mediator may make an independent proposal, which is a settlement number they believe both sides might accept—not based on the case’s merit, but as a compromise. Each side responds to the mediator privately with a yes or no, without knowing the other party’s answer. This tactic can sometimes break deadlocks when emotions or posturing block progress.

Understanding the different tools that can be used at the mediation can help you navigate mediation more effectively and respond in ways that serve your interests.  It is also a good practice to understand and learn about these tools prior to the mediation, so that you are not attempting to understand the tools at the same time you are evaluating how to negotiate at the mediation. 

5. Stick to Your “Last, Best, and Final Offer”

Credibility is everything in mediation. If you present a number as your “last, best, and final offer” but continue to negotiate after it’s rejected, you lose credibility with both the mediator and the opposing party. Once credibility is lost, it’s difficult to regain, and the other side will likely push for further concessions.

If you decide to issue a “last, best, and final offer,” be prepared to walk away if it’s not accepted. It’s a tool that should be used sparingly, and only when you are ready to end negotiations.