Mediation Is The New Trial

A. Treating mediation like trial forces you to develop a clear theory of the case, marshal your evidence, prepare your client, and strategize on timing and negotiation, greatly increasing the odds of obtaining a favorable result.

A. Approach mediator selection with care, focusing on whether the mediator is the right person to hire for your case. Look for substantial experience and strong interpersonal skills, with subject matter expertise a plus. Discuss options with your client so they understand the mediator’s role and feel invested in the process. A well-chosen mediator can significantly influence evaluation and momentum towards resolution.

A. Hold a pre-mediation meeting. Explain the process, confidentiality, and “shuttle diplomacy” by the mediator in the negotiation process. Coach the client on telling their story clearly and respectfully to the mediator. Set realistic expectations, discuss likely negotiation dynamics, and emphasize that a “win” is achieving an acceptable result—not total vindication.

A. Define a “win” in advance as reaching a resolution within an agreed target range or structure, not proving the other side wrong. Explain that mediation aims for “win win” outcomes, often built on shared assessments of liability and damages and recognition of the costs, risks, and delays of continued litigation.

A. Plan for mediation at the outset. Early mediation can work well when liability is clear, litigation costs will be disproportionate, or parties have reputational, family, or business reasons to avoid prolonged suit. Even in contested cases, consider pre litigation mediation, possibly with entering a tolling agreement that requires scheduling mediation.

A. Provide enough information for all sides to realistically value the case: key liability documents, critical testimony, expert reports and damages calculations consistent with Rule 26.1 disclosures. In personal injury cases, provide accident/injury pictures and videos, highlight key medical records and billings, and include IME reports, life care plans, and vocational loss information. Exchange this information well before mediation so decision makers can review and adjust authority and expectations.

A. Treat it like an opening statement: concise, persuasive, and grounded in admissible evidence. Integrate photos, diagrams, and key documents into the text rather than as attached exhibits. Address both strengths and weaknesses. Use it to educate the mediator and to influence the other side’s evaluation and internal discussions.

A. Yes, in most cases. A well-crafted, timely brief can shift the opposing side’s valuation and inform their internal “round table” reviews. Avoid sandbagging with new evidence or theories at the mediation session; most decision makers won’t have the ability or authority to respond meaningfully to surprise information revealed at the last minute.

A. Ensure all parties with full settlement authority attend virtually or in-person. If mediation is in-person, choose a neutral site, or mitigate any “home field” advantage if using one party’s office. Confirm adequate, private caucus rooms and basic amenities. Whether mediation is virtual, in-person, or hybrid, plan for a full day. Be sure to explain to clients that the process takes time and involves back and forth movement in negotiating a resolution.

A. Come to mediation prepared to resolve the dispute. Identify all essential terms in advance: parties and claims being resolved, payment amount and timing, treatment of liens/indemnity, confidentiality, and releases. Bring or request a draft settlement memorandum. In Arizona, a written agreement signed at mediation is binding, even if later replaced by a more formal document.