Mediation Preparation

Preparing for the Mediation

The disputes that resolve are the ones both sides came ready to resolve. Work through these steps before your session⁠—⁠the checklist keeps your place as you go.

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You’re prepared. Every step is checked⁠—⁠bring the same readiness to the table.

01 Logistics

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Pre-Mediation Logistics & the Mediator

Settle the practicalities first; a smooth day starts well before anyone logs on.

Confirm the EngagementReserve the date and time, settle the fee and how it is split, and sign the mediation agreement.
Schedule the Pre-Mediation CallA short call with the mediator (counsel only) to align on the key facts of the case, potential obstacles to settlement, and the shape of the day.
Block the Whole DayAvoid hard stops and keep the entire day clear; mediations often run long. Take the mediation seriously and do not plan to leave early.
Test the TechnologyConfirm camera, microphone, and a stable connection for all key participants. Secure a private space free of interruptions.
Organize Your EvidenceHave key documents indexed and instantly shareable on screen, so nothing stalls the conversation. If necessary, have people knowledgeable about the essential datapoints or facts on standby.

02 Evaluation

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Realistic Case Evaluation

Decide what the case is worth, and why, before you’re across the table from someone arguing the opposite. Discuss your case with all members of your data analytics team, witnesses, or experts to meaningfully evaluate these issues.

Evaluate the Case CandidlyWeigh liability and damages alongside litigation risk, evidentiary weaknesses, likely attorney’s fees exposure, and the cost of continued litigation.
Find the Decisive FactsIdentify the two or three strongest facts for each side and the documents that prove them.
Pressure-Test Your Own PositionName the weaknesses opposing counsel is most likely to exploit, and account for them now rather than live.

03 Exchange

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Information Exchange

Trade the documents that actually move the number; surprises at the table almost always set resolution back. This usually takes the form of informal discovery, but sometimes the parties will have engaged in formal discovery beforehand (depositions, interrogatories, etc.) to ensure that all necessary information and documentation is in the hands of both parties.

Exchange the Documents That MatterShare the key documents likely to influence settlement, using a sample large enough for reliable conclusions⁠—⁠a reasonable margin of error and confidence interval.
Produce the Class and PAGA RecordsIn representative matters, exchange wage and time records, arbitration agreements, and the governing policies and handbooks.
Provide the Underlying CountsWorkweek counts, pay-period counts, and headcount are almost always necessary to model class and PAGA exposure.
Surface Problem Documents EarlyDisclose the difficult records now rather than late; one unexpected document can undo a day of progress.

04 The Brief

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The Mediation Brief

The brief is your argument, not a form. Make it about this case.

Write a Fact-Intensive AnalysisAnalyze the specific facts and proof of this dispute, not a boilerplate recitation of the elements of a claim or defense.
Tie Each Argument to ProofAttach the documents that carry the weight, and connect every point to the record.
Choose Confidential or SharedDecide what belongs in a confidential brief to the mediator and what should be exchanged with the other side.
State the Risks and the HistoryInclude a candid risk assessment and the settlement history to date, including prior demands and offers.

05 Damages

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Damages Analysis & Experts

Numbers persuade. Bring a model you can defend, and one that anticipates theirs.

Build a Defensible Damages ModelDocument your assumptions, and retain a damages expert where appropriate⁠—⁠almost always in class and PAGA matters.
Quantify Exposure Claim by ClaimIn class and PAGA cases, value each claim and account for penalty stacking, manageability, and the court’s discretion to reduce penalties.
Stress-Test the Other Side’s ModelIdentify the assumptions driving the gap between the two analyses, and be ready to address them.

06 Authority

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Attendance & Settlement Authority

A deal needs a yes in the room. Make sure the people who can give it are present and empowered.

Confirm the Decision-Makers AttendEnsure that everyone whose agreement is necessary attends and stays for the entire session.
Verify Real AuthorityConfirm that attending representatives hold actual settlement authority sufficient to negotiate meaningfully, not merely to relay offers.
Resolve Insurance ParticipationConfirm that coverage issues have been explored and that any insurer whose consent is required is participating or immediately available.

07 Terms

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Settlement Terms & Deal Mechanics

Money is rarely the whole agreement. Work out the rest before it becomes the sticking point at midnight.

Inventory Every Material TermIdentify each term that must appear in the MOU, settlement agreement, or mediator’s proposal, including payment timing, the scope of the release, and the non-monetary terms.
Settle the Class & PAGA Deal PointsDecide the structure of the escalator clause, the definition of the class members or aggrieved employees, and the applicable class or PAGA periods.
Settle the Individual-Case Deal PointsIdentify any essential confidentiality or non-disparagement language, liquidated damages, whether a resignation is required, and rehire eligibility.

08 The Client

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Client Preparation

The client’s first encounter with these decisions should not be live, with the clock running.

Align on Objectives and RangeDiscuss goals and acceptable ranges with your client well in advance, so positions are not formed for the first time at the table. Prepare the client for flexible negotiating positions.
Prepare the Client for the DaySet expectations about the format, the length, and the emotional arc.
Designate a SpokespersonAgree on who speaks and how decisions get made within the client’s own team.

You’re Not Quite Ready for the Mediation

There’s real preparation still ahead. The work on this page⁠—⁠evaluating the case honestly, exchanging the key records, modeling the damages, and lining up the people with authority⁠—⁠is what separates a productive mediation from a wasted day. Start early; these steps take time to do well.

You’re Almost Ready for the Mediation

You’ve handled most of the preparation. Close out the few steps that remain⁠—⁠they are often the ones that quietly derail a session, from confirming real settlement authority to settling the non-monetary terms. Finish them now, while there is still time to make calls and gather what you need.

You’re Ready for the Mediation

Every box is checked⁠—⁠the case evaluated, the records exchanged, the brief written, the damages modeled, and the right people lined up with real authority. That groundwork is what lets the session spend its energy on the genuine gaps between the parties instead of on surprises. Bring the same readiness to the table: stay flexible on how you get there, listen for what the other side actually needs, and give the process room to work. The cases that settle are almost always the ones both sides came ready to settle.

09 Scheduling

Ready to Reserve a Date?

Skip the scheduling emails. Choose an available date, confirm, and you're on the calendar. No holds, no proposed alternatives, no waiting for a response.

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