You should also ask the mediator how they intend to handle the process, i.e. do they conduct pre-mediation calls, and will they allow for, or encourage some, informal discovery if you believe that is a necessary component of determining whether a settlement is viable? You should ask about in-person versus virtual if you have views on how the mediation process will be effective for your clients. Moreover, you should ask what the mediator will require in terms of submissions – formal statements? Shared statements with both parties? Additionally, you should consider the mediator’s style – do they adopt a facilitative or evaluative approach, and which do you think you (or the other side) might prefer to produce a better result?
Further, if you have used a mediator before, even with good results, it is important to consider that one size does not fit all. Sometimes a mediator’s experience in one matter will not be appropriate for or even necessarily translate to another case, or the parties or participants involved. So be reflective on who will be at the mediation table – not just your clients but the other party and their respective counsel. In doing this, it is important to consider the mediator's personality traits to ascertain if they are a good fit for the instant matter. Remember that the mediator is the "tool" that will be utilized to achieve a settlement and so how they fit into the dynamic is an important part of this process.
Also, one consideration to keep in mind is if the other "side" has a particular mediator they wish to utilize. If so, evaluate whether you could work with that person. Remember that this is not arbitration and the mediator is not making any decisions. Provided the proposed mediator is duly qualified and not someone you have an objection to per se, selecting someone the other side "trusts" or may listen to has tremendous value. Your goal should be to achieve a settled result. Therefore, the mediator's ability to guide the parties and have them listen to his/her views is critical. If the other "side" already trusts a mediator, then you at least know that they will or should listen to his or her recommendations and that is a value add for your goal in getting to a negotiated agreement.
Upon selection of a mediator during pre-mediation calls, your goal should be to educate the mediator so that they have all key facts and case law. The more the mediator knows and understands about the facts, the more effective they can be. It is important to convey any concerns your client has which could impact the process, such as identifying possible key stumbling blocks or highlighting certain "personality" issues. To that end, this might include advising the mediator (whether on a joint call or private call) that certain parties could create greater issues if they are in the room (or not in the room). It is also possible that you need the mediator to assist in getting through to your client as you as the advocate may be looking for assistance in managing a client who cannot seem to understand that settlement makes sense.
Of course, you also must ensure that the mediator has what he/she needs to fully and robustly explore risks and strengths of each parties' case. To that end, when preparing a mediation statement, be sure it is not simply a regurgitation of the arguments contained in the pleadings or a brief on the law in the area. The pre-mediation statement should be a settlement-focused document designed to educate the other side on the key strengths of your case, factually or legally, so that they enter the mediation in a settlement-focused frame of mind. This may be the first time the other side is learning your key arguments and your interpretation of the facts or case law. In fact, if the mediation is occurring pre-discovery, the other side has little information to balance their own views of the likelihood of success for their side or yours.
Importantly, prior to the mediation, you should also be sure that your client has crystallized his or her goals or wish list in advance; specifically, what the client really wants, or needs to get out of the mediation. You should review with your client both a risk analysis often referred to as "BATNA" and "WATNA", the Best Alternative to a Negotiated Agreement and the Worst Alternative to a Negotiated Agreement. Understanding these parameters will help make decisions at the table; part of this of course is understanding your case. You should be sure that the right party or parties are coming to the mediation and/or are accessible (if you need access to certain information or tax guidance, the appropriate players should be available even if by phone).
Additionally, be sure that in advance of the mediation, the client is educated as to how the process works so that they are properly prepared for the day's events. While you may have participated in multiple mediations, most likely your client has not. A client who is not prepared for the mediation and does not understand that there will be time where nothing may be going on and suddenly realizes they are stuck in a room and failed to bring other work or something to do can lead to an unhappy and frustrated client; of course, this is assuming that at that time they are not otherwise focused on discussing and considering issues and facts raised during the process.
Another critical decision in the mediation process is whether to conduct sessions in person or virtually. While both approaches have their merits and drawbacks, discussing a mediator’s views on this subject should be a consideration when deciding whether to dispense with a joint session especially in highly contentious cases where clients harbor strong animosity towards each other. Also at times, for economic reasons, or other logistics, virtual mediation may be particularly advantageous and should be a consideration in vetting a mediator. This approach isn't new; even before the pandemic, many divorce mediations were conducted virtually to mitigate tension between estranged spouses.
Finally, keep in mind that while the end goal is to reach resolution, even if you don't get to "yes", there is value in a mediation. If you prepare properly, and afford the process the integrity that it deserves, you will leave a mediation with a greater understanding of your case, with a better understanding of the other side’s arguments and positions. You should also have secured more facts to allow you to perhaps focus your discovery in a more streamlined fashion and know who key witnesses should be for these purposes. You may even have, from the mediation statements submitted, the outline of future motions or pleadings and some advanced work on research into case related issues. Further, you hopefully will have developed some rapport with the other lawyer and perhaps laid the ground work to narrow issues and/or for a future settlement. To be clear, even a failed mediation has value. Still, you will only get out of the mediation process that which you put into it.
