Insight

What Happens At Mediation

Tips to help facilitate a settlement during the mediation process.

Kevin K. Fitzharris

Kevin K. Fitzharris

April 29, 2024 10:15 AM

(PART 2 OF A 3-PART SERIES)

As an experienced mediator, I have found several things attorneys can do to help facilitate settlement during the mediation process. Here are a few helpful tips regarding:

  1. The Opening Session
  2. The Plaintiff’s Room
  3. The Defendant’s Room

1. The Opening Session: Don’t pick anybody off 1st base.

The growing trend is for all parties to waive an opening session and immediately begin settlement negotiations. As a matter of fact, waiving an opening session has become so popular that mediators typically assume no party wants an opening session unless one side demands the same. If either party wants to have an opening session, it is a good practice to let the mediator and opposing counsel know a few days in advance so that the other side can adequately prepare. No one likes to get picked off first base, and if one side shows up at mediation demanding an opening session and the other side is not prepared for the same, the chances of settlement are greatly reduced.

2. The Plaintiff’s Room: Come to Jesus early and often.

While the general rule of thumb for an opening demand is typically “the sky’s the limit” and “we can start as high as we want,” remember, it doesn’t matter where you start, it matters where you finish. If you are going to start on the high side, it is important to also stay focused on the range of what is the true case value. This helps the parties and the mediator manage potential unrealistic expectations. For example, if the plaintiff’s room believes the case is worth $20,000 to $30,000, but are going to start with an opening demand of $100,000, it is important to remember and focus on the the value of this case being not $100,000, $75,000, or $50,000, but $20,000 - $30,000.It is also helpful to remember that starting with an unrealistically high demand, will likely require reducing that demand significantly as the other side moves up in smaller increments. Managing expectations is key to a successful mediation session. Simply stated, regular come‑to‑Jesus meetings and discussions regarding the case’s true value, and not the opening or current demand, help keep the focus on an ultimate goal and help lead to a reasonable settlement.

3. The Defendant’s Room: Help us manage expectations.

Assuming the plaintiff makes an unrealistic opening demand and perhaps equally unrealistic demands thereafter, the defendant can, in turn, respond with unreasonably low offers. We frequently hear, “If they are going to start that high, then we are going to start this low. ”The mediator then spends more time than is necessary managing tempers of the respective attorneys and parties. When an unreasonably high demand is initially made (and perhaps demands thereafter are still considered unreasonably high), the best practice is simply to ignore what the plaintiff’s room is doing and make offers based upon the true case value. While this may seem like a hard pill to swallow, it more often than not helps a mediator manage a plaintiff’s expectations and results in a successful mediation session.

Speaking of managing expectations, without disclosing to the mediator what a defendant’s top dollar will be in terms of a final offer, it is helpful for a defendant to disclose to the mediator early on in a mediation session the general range of an anticipated settlement. Having a basic understanding of where a mediator will need to guide a plaintiff’s expectations is critical to setting the tone early and leading discussions in the plaintiff’s room in order to facilitate a settlement.

Part 1: A Mediator's Perspective - Before Mediation

Part 3: A Mediators Perspective - After Mediation

Trending Articles

2025 Best Lawyers Awards Announced: Honoring Outstanding Legal Professionals Across the U.S.


by Jennifer Verta

Introducing the 31st edition of The Best Lawyers in America and the fifth edition of Best Lawyers: Ones to Watch in America.

Digital map of the United States illuminated by numerous bright lights

Unveiling the 2025 Best Lawyers Awards Canada: Celebrating Legal Excellence


by Jennifer Verta

Presenting the 19th edition of The Best Lawyers in Canada and the 4th edition of Best Lawyers: Ones to Watch in Canada.

Digital map of Canadathis on illuminated by numerous bright lights

Legal Distinction on Display: 15th Edition of The Best Lawyers in France™


by Best Lawyers

The industry’s best lawyers and firms working in France are revealed in the newly released, comprehensive the 15th Edition of The Best Lawyers in France™.

French flag in front of country's outline

Announcing the 13th Edition of Best Lawyers Rankings in the United Kingdom


by Best Lawyers

Best Lawyers is proud to announce the newest edition of legal rankings in the United Kingdom, marking the 13th consecutive edition of awards in the country.

British flag in front of country's outline

Announcing the 16th Edition of the Best Lawyers in Germany Rankings


by Best Lawyers

Best Lawyers announces the 16th edition of The Best Lawyers in Germany™, featuring a unique set of rankings that highlights Germany's top legal talent.

German flag in front of country's outline

Prop 36 California 2024: California’s Path to Stricter Sentencing and Criminal Justice Reform


by Jennifer Verta

Explore how Prop 36 could shape California's sentencing laws and justice reform.

Illustrated Hands Breaking Chains Against a Bright Red Background

Celebrating Excellence in Law: 11th Edition of Best Lawyers in Italy™


by Best Lawyers

Best Lawyers announces the 11th edition of The Best Lawyers in Italy™, which features an elite list of awards showcasing Italy's current legal talent.

Italian flag in front of country's outline

Combating Nuclear Verdicts: Empirically Supported Strategies to Deflate the Effects of Anchoring Bias


by Sloan L. Abernathy

Sometimes a verdict can be the difference between amicability and nuclear level developments. But what is anchoring bias and how can strategy combat this?

Lawyer speaking in courtroom with crowd and judge in the foreground

Things to Do Before a Car Accident Happens to You


by Ellie Shaffer

In a car accident, certain things are beyond the point of no return, while some are well within an individual's control. Here's how to stay legally prepared.

Car dashcam recording street ahead

The Push and Pitfalls of New York’s Attempt to Expand Wrongful Death Recovery


by Elizabeth M. Midgley and V. Christopher Potenza

The New York State Legislature recently went about updating certain wrongful death provisions and how they can be carried out in the future. Here's the latest.

Red tape blocking off a section of street

Tampa Appeals Court ‘Sends Clear Message,” Ensuring School Tax Referendum Stays on Ballot


by Gregory Sirico

Hillsborough County's tax referendum is back on the 2024 ballot, promising $177 million for schools and empowering residents to decide the future of education.

Graduation cap in air surrounded by pencils and money

Find the Best Lawyers for Your Needs


by Jennifer Verta

Discover how Best Lawyers simplifies the attorney search process.

A focused woman with dark hair wearing a green top and beige blazer, working on a tablet in a dimly

Key Developments and Trends in U.S. Commercial Litigation


by Justin Smulison

Whether it's multibillion-dollar water cleanliness verdicts or college athletes vying for the right to compensation, the state of litigation remains strong.

Basketball sits in front of stacks of money

Is Premises Liability the Same as Negligence?


by Jeremy Wilson and Taylor Rodney Marks

In today's age, we are always on the move, often inhabiting spaces we don't own. But what happens when someone else's property injures you or someone you know?

A pair of silhouetted legs falling down a hole with yellow background

Woman on a Mission


by Rebecca Blackwell

Baker Botts partner and intellectual property chair Christa Brown-Sanford discusses how she juggles work, personal life, being a mentor and leadership duties.

Woman in green dress crossing her arms and posing for headshot

Best Lawyers Celebrates Women in the Law: Ninth Edition


by Alliccia Odeyemi

Released in both print and digital form, Best Lawyers Ninth Edition of Women in the Law features stories of inspiring leadership and timely legal issues.

Lawyer in green dress stands with hands on table and cityscape in background