The Importance of Preparation for Mediation

Very few attorneys would ever walk into tria++++l unprepared. Trial preparation calls for appropriate witness prep, exhibit prep, direct and cross exam prep, opening and closing prep, as well as a a variety of “last minute” motions in limine. Add voir dire prep to that laundry list, if there’s a jury.

That’s a lot to prepare and, in a word, what is the purpose of all this work? Resolution. A trial resolves the conflict between the parties and allows them to bring closure to their dispute (baring appeal, of course).

So why don’t all attorneys put in this kind of work when it comes to mediating a case?

Colleagues at Miles Mediation & Arbitration in Georgia noted, in their article “How does BigLaw Resolve Commercial Litigation Cases in Mediation?” that Big Law has a tendency to prepare — some would say over-prepare and ascribe ulterior motives to such preparations, but that’s a different discussion for a different day — large commercial cases thoroughly in anticipation of a mediation.

“If done correctly, the lawyers in a mediation will prepare carefully as though going to trial.  They should consult with their clients and draft key terms and provisions of any settlement agreement before the day of mediation arrives. A large commercial client expects substantive pre-mediation work to be done so that its best foot is put forward while the arguments of the opposing side are countered.  From the attorneys’ perspective, extensive preparation for the mediation will have the added benefit of managing the expectations of the client with a thorough risk analysis.”

The point of all this work, of course, is to achieve resolution. “By preparing the case thoroughly, BigLaw builds that consensus and is often able to better predict possible scenarios, many of which are played out internally before the mediation commences.”

So, rhetorically (or perhaps not so rhetorically?), what if lawyers prepared for mediation as if they were preparing for trial? Be it a simple stipulated liability soft tissue case or a more complex business dispute, the more work done by counsel to prepare for mediation, the more likely it is that resolution can be achieved at mediation. And resolution is the desired end to every piece of litigation.