By: William R. Lancaster Litigator | Outside Chief Legal Officer – Outside Chief Legal LLC
In more than 30 years of mediating cases – both as a party and as a mediator – I’ve noticed that successful mediation participants tend to share a few common traits. This is not an exhaustive list, but it is a solid baseline for productive (and not wasteful) mediation. With apologies to those who are better than I am at naming frameworks, I call them “The Four P’s of Mediation.” In no particular order:
Preparation
You need to prepare yourself and your team, your client, and the mediator. Clear your calendar for the mediation and pay attention to the client’s calendar too, especially now that most mediations require a true decision-maker to be present. Set aside time in advance to think about what you want to accomplish, and what you realistically need to do, to get the matter resolved. Gather the key documents, pleadings, and exhibits, and review them before you sit down with the client. In that client meeting, encourage questions instead of assuming they understand the process. Prepare the mediator as well. In addition to a written mediation statement, consider a brief private conversation to discuss expectations and concerns. Many mediators want to know about prior settlement discussions, so be ready to address what has already been tried and where the sticking points are.
Patience
Everyone who has participated in mediation has, at some point, felt offended, angered, frustrated, or mad enough to get up and walk out. Don’t. Stay focused on what you are there to do: find a resolution that works for everyone involved. A lot of time and effort went into getting the mediation set up. Don’t throw that away because of a single comment or move. Remember that this is probably the best opportunity you have had so far to resolve the case. Take advantage of it, even if it means tolerating what looks like games or posturing.
Perspective
Mediation is one part of a larger dispute resolution process, not an end in itself. Ask yourself: how helpful is it to make meaningless, tit‑for‑tat, microscopic moves? Sometimes a “zero move,” combined with a request that the mediator remind the other side that everyone needs to take the process seriously, is more effective than a responsive move that is one‑twentieth of their last move of one‑tenth. Keeping a real dialogue about the issues is almost always better than just throwing numbers back and forth. The decision‑makers who will ultimately resolve the case will be talking about those issues – you should be, too.
Persistence
Stay on point and focused on the day’s goal: finding a resolution that everyone can accept. Sometimes mediation participants drift, lose the thread, or seem confused about why they are there. When that happens, someone needs to be the voice of reason that brings the room back to the core purpose. Usually, that is the mediator, but effective lawyers and parties are willing to be allies in that effort. Help the mediator keep the group moving toward a resolution instead of letting the process stall.
We are fortunate to have many strong mediators in our legal community. We will all be better served if we remember Preparation, Patience, Perspective, and Persistence when we seek their assistance. At Outside Chief Legal (OCL), we see mediation as a critical tool for business owners and leadership teams facing high‑stakes disputes. Our litigation counsel and mediators work with clients before, during, and after mediation to prepare strategy, manage risk, and keep the focus on practical outcomes – not just process.
If your company is heading into mediation or considering it as part of a broader litigation strategy, we can help you approach it with the right structure and support. Learn more at www.outsidechieflegal.com.
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