Mediation Checklist for Effective Advocacy

By Melvyn J. Simburg

PLANNING FOR A POSSIBLE MEDIATION

I. Timing

Good times to successfully mediate an existing dispute, in descending order:

  1. Early, when the issues and interests are known, but substantial expense can be saved.

  2. Late, when discovery and motions are complete and it is the last chance to avoid a trial or hearing on the merits.

  3. Near motions, either just before or after one or more key motions are presented.

II. Selecting a Mediator

  1. Are any particular skills, knowledge, or experience important to understanding the issues and interests in the dispute or with respect to the parties?

  2. Do you prefer as the primary qualification a mediator who:

    a. Can assess and share the mediator’s opinion regarding the legal strength of the parties’ positions and what would happen in court (such as a former judge); or

    b. Facilitates the parties’ negotiation of imaginative solutions to the issues facing them?

  3. What are the mediator’s fees and policies?
    Consider the effect of possible cancellation or rescheduling.

III. Information Gathering

  1. Assemble the important facts and documents in your case.

  2. Obtain necessary information from other parties.

  3. Identify the necessary participants.

IV. Evaluate Client’s Position on Key Issues

  1. Must haves.

  2. Can let go.

  3. Trading chips.

  4. Determine the goals for mediation.

V. Participation and Decision-Makers

  1. Key decision-makers must participate.

  2. Determine who is key besides the named party, such as:

    a. Spouse
    b. Relative
    c. Expert
    d. Corporate officer
    e. Financial advisor

  3. A key person may not be central to the issues but may be a key adviser to the apparent decision-maker.

  4. This applies to your client and the other parties.

  5. Ensure key decision-makers are available when setting the mediation session date(s).

PREPLANNING FOR THE MEDIATION SESSION

VI. Interests Beyond the Facts of the Dispute

  1. Critical time periods for upcoming events, decisions, or necessary actions.

  2. Health of participants.

VII. Emotional Concerns

  1. Animosity.

  2. Hurt feelings.

  3. Jealousy.

  4. Pride.

  5. Fear.

  6. Anger.

VIII. Economic Concerns

  1. Existing losses.

  2. Fear of future loss.

  3. Importance of avoiding loss.

IX. Key Needs

  1. Emotional needs.

  2. Metrics-based needs
    (for example, “must have at least ___ or it will be embarrassing”).

X. Underlying Interests

  1. Other interests that are the real reason behind a party’s desired outcome.

  2. The goal is to determine and satisfy the “real reason” rather than the stated issue or stated position.

XI. Cultural and Power Factors

  1. Cultural factors that should be taken into consideration.

  2. Balance-of-power issues that affect:

    a. Personal concerns
    b. Emotional concerns
    c. Economic concerns

XII. Obstacles

Make a list, including:

  1. Economic concerns.

  2. Personal concerns.

  3. Interpersonal dynamics.

XIII. Special Needs

  1. Disability.

  2. Medical condition.

  3. Need for a translator.

  4. Other special circumstances.

  5. Inform the mediator so accommodations can be made.

XIV. Client Briefing

  1. Explain the mediation process.

  2. Explain the probability of significant downtime.

  3. Have the client bring a book or other material to occupy downtime.

  4. Bring necessary food or snacks, particularly for individuals who must eat frequently to manage blood sugar levels.

  5. Ask about any additional client needs or concerns.

XV. Final Preparation

  1. Confirm that you have the information you want for the mediation.

  2. Review with the client all concerns, interests, and goals.

  3. Discuss alternative acceptable resolutions.

XVI. Plan Submissions

Determine whether you will submit:

  1. A confidential memorandum.

  2. A memorandum shared with other parties.

  3. Both.

PRESESSION COMMUNICATIONS

XVII. Shared Written Submission

Unless the mediator has specific requests, include:

  1. Factual history:

    a. Parties
    b. Events
    c. Issues and problems

  2. Procedural history:

    a. What has happened so far
    b. Important future deadlines and dates
    c. Discovery, motion, and trial preparation status

  3. Each party’s position on:

    a. Claims
    b. Defenses
    c. Factual issues
    d. Legal issues
    e. Requested relief

  4. Settlement efforts to date and each party’s last position.

  5. Any other useful information, including technical matters or impediments.

  6. Send key documents for the mediator to review.

XVIII. Confidential Submission

  1. A clear statement of the client’s interests, objectives, and goals.

  2. Factors that may be helpful to a negotiated resolution:

    a. Continuing relationship.
    b. Common interests or experiences of key individuals.
    c. Common or overlapping goals and interests in a solution.
    d. Other facts that could help reach a compromise.

  3. Factors that could interfere with a negotiation:

    a. Bad experiences.
    b. Bad feelings, including hostility, mistrust, and bitterness.
    c. Cultural, personal, or business-related bias, imbalance, or differing interests.
    d. Particular history, experience, or known intransigence.

  4. Particular concerns regarding:

    a. Upcoming costs or risks.
    b. Disruption to business.
    c. Publicity, reputation, goodwill, or other sensitivity.

  5. Personalities of key players.

  6. Information supplemental to the shared memorandum, including:

    a. Potential settlement range.
    b. Solutions your client could accept but does not want disclosed.

  7. Matters of special confidentiality requiring special handling.

  8. Other cultural factors to be considered.

  9. Any other information that could be helpful to the mediator for any reason.

XIX. Communications with the Mediator

  1. Communications with the mediator are expected.

  2. Many mediators will want to speak with counsel in advance.

  3. Be prepared to discuss:

    a. Key factors for a successful mediation.
    b. Personalities of participants.
    c. Impediments to resolution.
    d. Approaches that may lead to settlement.

  4. Educate the mediator.

PARTICIPATION IN THE MEDIATION SESSION

XX. Mediation Settlement Agreement

  1. Prepare a draft in advance.

  2. Bring it on a laptop or thumb drive.

  3. Include time periods, enforcement provisions, and any necessary confidentiality or nondisparagement clauses.

  4. Determine whether a summary settlement stipulation is also required.

XXI. Visual Aids

  1. Consider charts, videos, or demonstrations.

  2. Determine:

    a. What points you are trying to communicate.
    b. To whom the information is directed.
    c. Whether visual aids will be helpful.

XXII. The Advocate’s Goal: Problem-Solving, Not a Hired Gun

  1. Assist the client in determining whether an acceptable solution exists.

  2. Shift from a protective to an assistive perspective.

  3. Separate people from problems.

  4. Focus on solutions rather than blame or rights.

  5. Focus on interests rather than positions.

XXIII. Know the Alternatives

  1. BATNA — Best Alternative to a Negotiated Settlement.

  2. WATNA — Worst Alternative to a Negotiated Settlement.

XXIV. Strengths and Weaknesses

  1. Know the weaknesses and risks of your client’s position.

  2. Understand the strengths of the other party’s position.

  3. Analyze litigation risks at each procedural stage.

  4. View the dispute from the other party’s perspective.

XXV. Identify Barriers to Settlement

  1. Discuss perceived obstacles with the client.

  2. Brainstorm methods to remove or bypass those obstacles.

XXVI. Restructure Communications

Consider whether:

  1. Separate caucuses would be helpful.

  2. Counsel-only meetings would be helpful.

  3. Party-only meetings with the mediator would be helpful.

XXVII. Additional Information

  1. Obtain additional documents or information if needed.

  2. Bring in additional participants when appropriate.

XXVIII. Focus and Reassess

  1. Revisit goals and objectives.

  2. Assess progress.

  3. Identify issues that can be removed from consideration.

  4. Adjust objectives as circumstances evolve.

XXIX. Values

  1. Be prepared to value alternatives that arise.

  2. Pause the session if necessary to evaluate unexpected proposals.

XXX. Learn

  1. Each mediation is a learning experience.

  2. Adjust strategy as insight develops.

XXXI. Perspective

  1. Mediation is both a science and an art.

  2. Trust your impressions and intuition.

  3. Remember: this is a problem to solve, not a battle to win.

XXXII. Ethical Obligations

  1. Puffery and positioning are permitted.

  2. Material misrepresentation is prohibited.

  3. Concealment of assets or liabilities may invalidate an agreement.

  4. Counsel must not be complicit in fraud.

  5. Withdrawal may be required if ethical obligations cannot be met.

CONCLUDING THE SESSION

XXXIII. Never Walk Out

  1. Communicate concerns to the mediator.

  2. Allow the mediator to determine whether an impasse exists.

XXXIV. Continue the Process

  1. Mediation may continue beyond the scheduled session.

  2. Document resolved issues in writing.

  3. Develop a follow-up plan.

XXXV. Complete the Objectives

  1. Review the checklist.

  2. Address unresolved issues.

  3. Narrow disputes even if full resolution is not achieved.

XXXVI. Confirm Client Satisfaction

  1. Address all client questions and concerns.

  2. Client satisfaction defines success.

XXXVII. Sign an Agreement

  1. Reduce all terms to writing.

  2. Obtain signatures before leaving the venue.

  3. Remember: an understanding is not an agreement until written and signed.

© 2026 Simburg Dispute Resolution