Preparing the Client for Mediation – Questions Clients Ask Their Lawyers

Kent B. Scott | Babcock, Scott & Babcock


If your client is involved in a legal dispute, you may be able to settle it without going to court.  One way to do this is to work out a solution with the help of a mediator – a neutral third person.  This article addresses some of the many basics in preparing the client for mediation.

The recently published 2007 Edition of the AIA   A-201 General Conditions along with the General Conditions of CONSENSUSDOCS and most other standard industry support construction documents contains language requiring the parties involved in a dispute arising under the contract to mediate their matter before resorting to arbitration or litigation. The conditions require parties to first mediate their dispute prior to litigation their dispute.  The AIA A-201 General Conditions provide in part for the following procedure: “….If a dispute arises out of or relates to this contract, or the breach thereof, and if the dispute cannot be settled through negotiation, the parties agree first to try in good faith to settle the dispute by mediation administered by the American Arbitration Association under its Construction Industry Mediation Rules before resorting to arbitration, litigation, or some other dispute resolution procedure.”

 The use of mediation, in one form or another, has been around as long as there have been disputes.  Granted, Julius Caesar most likely did not need the services of a mediator.  But how many parties have his resources: slave labor, free materials from conquered nations and legions of soldiers to enforce the contract terms? Modern day construction for several reasons has gravitated toward the use of mediation to resolve disputes.

The mediation of construction contract disputes has traditionally been voluntary.  The AIA A-201 mediation requirement, similar contract provisions and required court annexed alternate dispute resolution programs have brought a new element to the dispute resolution game – mandatory mediation. Whether mandatory mediation will serve the needs of the construction industry or become just another fossil in the graveyard of “good attempts” is unknown.  For now, mediation is going to be used with increased frequency by parties involved with a construction dispute.  Attorneys will end up spending more time in mediation than court.  So let’s get trained and train those who are coming into the fold.  The following represent a few fundamental questions lawyers should expect from their clients who are involved in a dispute.


Mediation is an alternative to the traditional litigation process.  Mediation is an informal process in which a trained neutral third party, the mediator, assists the parties in reaching a negotiated resolution to a dispute.  Mediation is forward-looking. The goal is for the parties to work out a solution they can live with.  Mediation focuses on solving problems, not uncovering the truth and applying facts to legal principles.

Mediation, by its nature, requires the cooperation of all parties.  Mutual cooperation and consent are essential ingredients in order to realize a mediated settlement. However, if the construction contract terms or required court annexed alternate dispute resolution programs require the contractor and other parties to mediate a dispute, it is important that all parties mediate in good faith. The mediation requirement may be avoided by mutual waiver.  However, all parties must consent to the decision to bypass the mediation requirement and move on to the litigation or arbitration of their dispute. 


Mediation is a faster and more economical alternative to litigation or arbitration. The mediation meeting is scheduled by the parties and is not dependent on the needs and requirements of the court’s calendar.  The parties are expected to exchange information that supports their claims and defenses in a cooperative manner.  The time and expense involved with the traditional discovery methods and the practice of filing motions are suspended until the outcome of the mediation.  The parties are responsible for the outcome of the mediation.  Their consent is a necessary ingredient in order for to achieve a settlement.  In addition, one of the stated objectives of the mediation process is to preserve business relationships that a more adversarial process tends to destroy.


If the mediation fails to resolve the dispute, the parties may feel they have wasted valuable time and money.  Attorneys, mediator fees and company time have been expended. Some attorneys and their clients express concern that too much free discovery is given out or the opposing party has received information involving confidential and proprietary practices. In addition, many attorneys are fearful that their litigation or arbitration strategy will be compromised.  The contractor who faces a mediation situation, whether voluntary or involuntary, will want to weigh these concerns against the benefits of an early resolution achieved through mediation.


The success of a particular mediation is mainly controlled by the parties.  Some of the critical components of a successful mediation involve:

  • The right mediator.
  • Attendance of the right people with the knowledge and authority to settle.
  • The level of information exchanged.
  • Current needs and interests.
  • Whether a trial or arbitration has been scheduled
  • The commitment of the parties and their attorneys to prepare for and participate in the mediation.

There is no set formula for assuring that a mediation may succeed.  Mediation can be effective anytime.  Most mediations occur after a claim has been filed and some exchange of information has taken place.  The decision as to whether or when to mediate will vary with each case.

The statistics from the major institutional mediation services indicate that mediation is most successful when the dispute is in its early stages before the parties have expended their resources on combat, which resources could have been used for settlement. It is important to realize that successful mediation involves a good faith exchange of information between the parties.

The mediation should take place at a neutral site.  The location is often arranged by the mediator. For mediations involving out of state participants, a value judgment will need to be made concerning the time and expenses that will be incurred.  Always keep in mind that most mediators are available to travel to a neutral site to conduct the mediation.


Not every mediation will be successful. The reasons for a failed mediation vary. One or more of the common elements for a successful mediation may be missing.  One of the parties may be too emotionally stuck. The mediator may not have been the right person to get the job done. 


Yes.  All mediation proceedings are confidential.  Documents created for the mediation are also confidential and may not be introduced during a subsequent trial if the dispute is not settled.  Likewise, the mediator should not testify or be compelled to testify at a subsequent trial.  If the dispute subsequently goes to trial, the judge who is assigned to the case is not told the identity of the mediator or given any information about what took place during the mediation process. 


No.  The mediator does not decide who is right or wrong, neither does the mediator make findings of fact, or rules on issues of law.  The mediator has no authority to impose a settlement on the parties.  Instead, the mediator helps the parties to jointly explore and reconcile their differences.  If mediation does not generate an agreement, the parties do not lose their right to trial, and either side is free to sue or propose binding arbitration.


The following is a brief summary of those who would be expected to attend the mediation:

  • Legal counsel: Yes, if represented.
  • Client: The person with authority to settle and others with knowledge of the facts.
  • Experts: Avoid having experts involved.  They are hired to support your position       and often complicate the process where settlement options are being discussed.           Experts may be helpful to describe technical information.
  • Documents: Less is better.  Summaries, graphs and charts are useful.
  • Others: Associates, secretaries or assistants are discouraged.  If there is a need,          make advanced arrangements so all parties approve and understand their respective roles.
  • Other information requested by the Mediator.


Mediation is a very efficient process that saves time and money.  While the length of mediation will vary in each case, the majority of mediations are completed in eight hours or less.  More complex cases, however, will often times require more than one day to mediate.  Also, since the mediation process is voluntary, either party may leave at any time if they wish, and the mediator can terminate the meeting if it does not appear to be working, although this is very rare.


Dress comfortable, but respectable.  Mediation is informal and the parties should feel comfortable.



Every mediation is different and unique.  Experienced mediators will use a format that is best suited for the particular dispute. Generally, the process of mediation falls into six stages:

  • Mediator’s Opening Statement. After the parties are seated, the mediator will introduce the parties, explain the goals and rules of the mediation and likely encourage each party to work jointly toward a settlement.
  • Parties’ Opening Statements.  Both parties are allowed time to explain, in his or her own words, what the dispute is about, how they have been affected by it, and to present a few ideas for resolving the dispute.   
  • Joint Deliberation.  The mediator may attempt to get the parties talking directly regarding what was said in the opening statements.  This allows the mediator and the parties time to determine what issues need to be addressed. 
  • Private Caucuses.  This is the guts of every mediation.  The private caucus is a chance for both parties to meet privately with the mediator to discuss the strengths and weaknesses of his or her position, and brainstorm ideas for settlement.  The mediator may “caucus” with each party once or several times if needed. 
  • Joint Negotiation.  After private caucuses with each party, the mediator may bring the parties together again for direct negotiation.
  • Wrapping it Up.  This is the end of the mediation.  If the parties have reached an agreement, the mediator will likely summarize the main provisions, verbally, while the parties listen.  The parties will them memorialize their settlement by drafting and signing a summary of the settlement which cover all material settlement points.  This document is legally binding and enforceable by the courts. Counsel for the parties will later prepare more detailed documents consistent with the summary agreement signed at the mediation. If no agreement is reached, the mediator will review the progress made by the parties in the mediation and advise each party of their options, such as meeting again later for further mediation, going to arbitration or going to court.


Before the mediation begins, legal counsel and the mediator can work together in determining how much information should be made available in order to give the mediation the best chance for success.  Consider if you want to exchange position statements with counsel or submit them as confidential statements to the mediator.  You may use a hybrid approach such as exchanging position statements and providing the mediator with a confidential summary of strengths, weaknesses and objectives.  In your confidential discussions (not in your position papers) share with the mediator the personality traits of the parties as well as hurdles that need to be overcome. 


The mediation process should be client friendly. However, during the opening joint session, it is best to keep comments from the parties down to a minimum.  As in every case there are exceptions.  Counsel should work on the level of client participation as part of the mediation preparation.    While the attorneys play the central role in litigation proceedings, the clients, as a general rule, should be proactive in the confidential caucus sessions. 

It is important and central to the success of the mediation process to open up a dialogue of positions and interests.  The “rambling client” can provide spontaneous information in a safe and confidential setting that will be useful to a successful resolution.  There is a point where counsel may have to intervene to keep the client focused or get the client back on track.  This is the part where you make your money as a “counselor at law.” 


Little is said about what you do when the mediator is in the other room meeting with the opposition.  These moments may provide for some awkward and pressure cooker exchanges.  However, a lot can be accomplished by using this time productively.  Here are a few suggestions for legal counsel:

  • Let your client vent. 
  • Evaluate strengths and weaknesses.
  • Discuss real interests and objectives.
  • Discuss the case budget.
  • Analyze the options if the mediation fails.
  • Try out new ideas for settlement.
  • Go for a walk.
  • Be sociable. Encourage your client to talk about something that interests him or her.


This question assumes there is some advantage for one party to move the process forward.  This one is a non-issue.  Many items need to be discussed before offers begin to be put out on the table.  A good mediator will take the time and make the effort to understand the position and interests of each party.  The mediator will know when to start the process of making offers.  Usually the mediator will seek a consensus on the easy issues and work toward an agreement on more difficult matters thereafter.


There comes a point when the mediation shifts from information gathering to negotiation, and the exchange of offers and counter-offers.  Rapport and timing are crucial.  Negotiation is a back and forth process that should not be short circuited or rushed.  Begin with the end in mind.  Be goal oriented, not advocacy minded.  Remember your objective:  to achieve a better alternative to a litigated result. 

A first offer should not be a final offer.  It should be offered in good faith and not treated lightly.  You are not buying a used car where the parties start out at opposite ends of the spectrum and meet in the middle.  There is a certain chemistry to the mediation process that you should be on the look for.  When you discover it – seize it and use it to serve your client’s interests. Remember, you are working with human beings who come packaged with their own set of emotions and views.  Leave yourself room to negotiate, but don’t discourage the other side from continuing with the process by being unreasonable or unrealistic.  By all means, be realistic. 

Keep movement going; movement that brings the parties closer to resolution.  Encourage your client to make concessions that are important to the other party but have limited value to your cause.  Don’t overlook your client’s concerns.  Here is where listening is essential to your success as an effective mediation advocate.  By all means, include all elements that need resolution in your offer.  It is counterproductive to add new demands late in the game.  In fact, it is a recipe for disaster.

Stay flexible.  Avoid taking the “line in the sand” approach. Work with the mediator in breakout or side caucuses with opposing counsel or with the parties outside of counsel’s presence.  Remember, the mediator is the only one who knows what is going on in all of the rooms.  Place some trust in his judgment as to what is and is not a realistic position to take.  Trust in the mediator.  The mediator is the one person who has the best sense as to where the negotiation is going; how much flexibility the other side has; can best keep the ball rolling and has an idea about what it is going to take to achieve closure to the dispute. 

Always keep something in reserve to “sweeten the pot” and to complete the deal.  Agree to pay for settlement document preparation, to write letters of support or apology, to do future work, trade something for something, or even pay a portion of the mediator’s fee (last resort). 


When this occurs, that means your client is either frustrated or negotiations have reached an impasse.  Determine which is the case.  If the client is frustrated, relate to him or her the progress that has been achieved thus far.  Tell the mediator that you would like to  speak with your client alone.  Remind the client of what is likely to happen if a settlement is not achieved.  Talk about how much the litigation process is going to cost in terms of money, client manpower, and time.  Analyze the likelihood of different outcomes. 

Talk about new ideas.  This is the time to get creative.  Add a new twist to old information or ideas.  Above all, counsel should remain independent.   Keep a sense of humor.  Tell your client what you think would be a good deal and what you think should not be accepted.  The client is the boss, but it is the attorney’s duty to remain independent and objective. 


Congratulations!  You are the owner of a brand new settlement.  Keep the client in the room.  Sit down with opposing counsel and craft a settlement agreement that covers all major points.  Spend some time and don’t rush.  State in the agreement that there will be more formal documents to follow consistent with the terms of your settlement agreement.  Designate who will prepare the final documents, and outline the dates by which all tasks are to be completed. 

Provide a remedy for default and a dispute resolution mechanism.  Include terms for who pays what costs, what will be done with interest and who will be responsible to pay for attorneys’ fees. 

Have both parties and counsel date and sign the settlement agreement and give both a copy.  It is important to be timely and accurate in the preparation of the final settlement documents.  Remind your client that settlement remorse may set in the next morning.  But be quick to emphasize that he or she will experience a sense of relief and freedom to work on other matters other than the case at hand.


No party will be bound by anything said or done at the mediation unless a written settlement is reached and signed by all necessary parties.  If a settlement is reached, the agreement must be in writing.  When the agreement is signed and approved by the appropriate parties or authorities for all parties, it will be binding.  An agreement reached during mediation is enforceable in court just like any other settlement agreement. 


Mediation is one technique to settle disputes.  Mediation is not appropriate for every dispute, but it has the advantage of allowing the parties to choose the process and outcome rather than have it determined for them by a judge, jury or arbitrator.

Mediation is designed to give the parties a great deal of control over the outcome.  The parties are given an opportunity to confidentially express their interests and values without compromising their positions while in the presence of other parties.  Mediation provides a sense of involvement and control over the mediation process and the terms of a settlement.

To be successful in mediating, the parties must understand the mediation process, the merits of their case, and strategies to obtain a good result. In the end the client owns the mediation process.  An informed client can best use and realize his or her objectives in seeking a resolution that is a better alternative to a litigated result imposed by judge and jury. 

Kent B. Scott is a shareholder in the law  firm of Babcock Scott and Babcock, located in Salt Lake City, and serves as a member of the American Bar Association’s Construction Litigation Committee.

10 Recommended Tips for Remote Mediations

Amy Rubenstein and Ileana M. Blanco | DLA Piper

While in-person mediations may be preferred, some parties have been required to proceed with remote mediations to mitigate further delays during the coronavirus disease 2019 (COVID-19) pandemic.  To help adapt to this procedure, we provide these 10 recommended tips for consideration when taking or defending remote mediations:

  1. Preparation.  Virtual mediations require more − not less − advance preparation.The mediator needs persuasive position statements and exhibits before the mediation whenever possible. Consider advance discussions with the mediator for each side to preview positions.
  2. Agreements with opposing counsel.  Before the mediation, confirm any party stipulations, starting times and limitations (including related to non-recording), and locations of participants.Send calendar notices, including to the mediator, that account for time zone differences.
  3. Governing rules.  Know the rules in advance. Who can mute the host, mediator, parties? Will it be short or lengthy sessions with scheduled formal offline breaks? Will private caucuses be done in remote virtual rooms, will the parties participate through different platforms, or will the parties leave the joint sessions and rejoin when ready to resume discussions with the mediator?
  4. Mediation environment.  Dress appropriately, from head to toe, and maintain professional visual surroundings.
  5. Technology.  Technology is paramount for virtual mediations. In advance of the mediation, arrange to have access to an IT technician who will be available to help with any technical glitches.When possible, avoid handling the technical aspects unless it will not be distracting. Otherwise, arrange to have someone else handle the technology so that you can focus on the mediation.Know the operations and limitations of the chosen platform and have a backup technology plan. 
  6. In-session communications.  Have a system in place to relay private messages to participating colleagues or co-counsel and your client, without inadvertently communicating with the mediator or opposing counsel.
  7. Preparing clients.  Provide detailed advance explanation to the client of the mechanics involved with the remote mediation and conduct a test run for the mediation incorporating all aspects of the proceeding.
  8. Settlement agreement.  Have a draft mediated settlement agreement prepared in advance and an agreed system for executing remotely so that everything can be finalized if settlement is reached. 
  9. Payment arrangements.  Arrange for payment to the mediator in advance to ensure the mediation proceeds as scheduled.
  10. Stay focused.  When engaging with the mediator during the virtual mediation, avoid texts, e-mails, and other distractions unrelated to the mediation that may unintentionally signal a lack of interest or commitment.

Can You Have a Virtual Mediation? The Answer Is Most Definitely Yes!

Hon. Lynn O’Malley Taylor (Ret.) | JAMS

Let’s say you have just received an invitation to a virtual mediation. You really want to settle your case, but you have no experience with virtual mediations. You have so many questions: Will I understand how to use the virtual mediation platform? How easy is it to learn? Will my client be able to use the virtual mediation platform? Is the mediator going to be able to form a connection with my client through a computer screen? Will the mediation be confidential? Will it be private? What can I do to make the mediation successful?

Don’t panic! Everyone, including the mediator, is on a progressive learning curve. We learn something new every time we use virtual mediation. Soon you will be comfortable using this great option to resolve your cases.

What are the advantages of virtual mediation? Flexibility is a major one. Clients and attorneys can be scattered around the world. Nobody will have to worry about getting stuck in traffic or missing a flight. Another advantage is that you have a surprisingly intimate view of each other so that you can focus on not just what is being said, but also facial expressions and body language. Rather than burying everyone in paper during the mediation, another advantage is that you can share and modify documents on your computer.

Yes, you can figure out how to participate in a virtual mediation. You and your client(s) can practice using a virtual mediation platform with your JAMS case manager and your mediator. The platforms are easy to learn and easy to use. You can also schedule a trial run with your JAMS case manager and your mediator a few days beforehand.

Yes, the mediator is going to be able to make a connection with your client(s). Rarely do you get as close to a person in an in-person mediation as you do in a virtual mediation.

Yes, the mediation will be confidential. The JAMS case manager will send you a link with an entry code. Once you sign on, you will be placed in a waiting room and then moved to a breakout room(s) with your client(s). No one can hear what you discuss with your client in a breakout room. Your mediator will call or text you when he or she is ready to enter the room. You can do the same when you want him or her to return to the room after having a private discussion.

Yes, the mediation will be private. You and opposing counsel will provide the mediator’s case manager a list of all the participants. Only those on the list will be allowed into the virtual waiting room. Once the mediation commences and all the participants have been placed in breakout rooms, and no one else can enter.

What can you do to make the mediation successful?

1. Configure your room.

  • If you are not using a device that has a built-in webcam with a microphone, purchase a webcam and attach it to a tabletop tripod.
  • Elevate your computer. (Books work well.)
  • Make sure your face is well lighted.
  • Use a non-distracting background. (Do not have a window open behind you, as your face will be a silhouette.)
  • Wear solid-color clothing that will not distract the participants.

2. Have a practice virtual mediation session with your client, JAMS case manager and mediator. Address everyone’s questions and work out any technical issues.

  • Who will be attending the mediation?
  • Is there anyone who is not scheduled to be at the mediation who should be invited?
  • Are all the decision-makers available?
  • Where are the parties located?
  • Does anyone have any time constraints or conflicts?
  • Does everyone understand that they are not to record the mediation?
    • (The virtual platform record function will be disabled by the mediator anyway.)
  • Is there anything not stated in the mediation statements that the mediator should know prior to the mediation (e.g., client-control issues, insurance coverage issues, unmentioned settlement discussions, etc.)?
  • Should you have a proposed settlement agreement on your computer ready to share? (Documents can be shared and worked on collaboratively using the screen-share function and signed remotely using DocuSign.)

3. Be prepared and have a positive attitude, as you would for an in-person mediation.

You will learn new skills doing a virtual mediation and expand your practice in a creative and transformative way.

Virtual Mediation – It Works!

Lela Hollabaugh | Bradley

Few lawyers considered mediation using web-based video conferencing before March of 2020. Now lawyers are not only considering doing it, it is working. Below are a few thoughts for success.


  • First and foremost, make sure to use a secure video conferencing platform. Client confidentiality remains essential.
  • Each party to the mediation should set up their separate video conference. This allows the attorneys and representatives who are participating to have their own “conference room” to discuss the facts and any planned settlement offers. The mediator can join as needed, and you will always know when the mediator joins – just like they walked into the room.
  • If your mediation requires a joint conference among the parties a separate video conference link may be used.
  • Test the video conferencing with the mediator before the mediation begins to ensure that everyone knows how it works and that those persons who require it have video capabilities.

The Mediation Process

The mediation in which I was involved recently proceeded just like a normal mediation. All parties and their lawyers talked with the mediator and expressed their positions. Everyone could see each other just as if we were in person. Demands and offers were exchanged with positions and reason to support each. I did not observe any downside to conducting a virtual mediation. However, I can foresee some minor difficulties in cases where the mediator and the parties need to look at documents, drawings or photographs together to fully understand their importance.

To address issues that may arise with viewing documents, consider sending the mediator the key documents before the mediation and confirming with the mediator that you will be able to send the mediator documents electronically during the mediation. You may also need to share documents with the mediator and your clients from your computer while in the video conference. Simply, these issues can easily be addressed.

If a settlement is reached, the mediator or one of the lawyers can document the key terms of the settlement and email them to counsel and the parties for signatures. Again, this should work just as if you were mediating in person.

Overall Assessment

Why have we not done this before? It is so easy. It is less expensive. There was no travel for anyone involved. More stakeholders for each party may participate if needed. The “down time” each side experiences during a mediation is mitigated because you can put the audio of the video conference on mute and turn off the camera. A simple email or text to your client team alerts them to rejoin the video conference.

While I am certain technical difficulties will sometimes interfere with a virtual mediation, with practice and patience those difficulties can be minimized and overcome. I wonder if we will ever return to in-person mediation, except in the rarest of cases.

Virtual Mediation (Part 2): The Challenge of Establishing Trust

Donald R. Frederico | Pierce Atwood

Like most aspects of litigation, mediation is a very personal pursuit. So much depends on the credibility and communication skills of the participants. Equally important are the participants’ non-verbal cues, including tone of voice, facial expressions, and body language. And a key to success of many mediations is the ability of the mediator to develop a rapport and trust with all of the players. Just as online poker cannot truly replicate the in-person card game, so virtual mediation is not a perfect substitute for a mediation that takes place around an actual table.

Despite its deficiencies, virtual mediation has some advantages. If some participants are not located where the mediation is taking place, it can save them the time and cost of travel. It also may provide some greater flexibility in how the mediation is structured. And, of course, in times like these, there may simply be no alternative than to mediate online. But parties who do not have to go to the trouble and expense of travel, and configurations that do no leave people stuck in their break-out rooms, can also lessen the parties’ commitments to full engagement in the mediation process and getting a deal done.

Class actions may be less susceptible to the shortcomings of virtual mediations than other types of disputes. By the time many class actions reach the mediation stage, the lawyers for both sides will have gotten to know each other and formed whatever relationship they are going to form through court appearances and discovery. Also, class action mediation sessions typically are attended only by lawyers or business representatives who, if they are doing their jobs well, are not as driven by emotion as individual parties tend to be. Still, the personal touch can be important even in a class action mediation, especially in the interactions between the mediator and the representatives of each side.

Mediators can attempt to overcome, or at least mitigate, deficiencies in the quality of personal interactions by increasing their quantity. They can, for example, place more emphasis on pre-mediation videoconferences with each side of a dispute, as well as post-mediation videoconferences for cases that do not settle on the day of mediation. The more the mediator is able to connect both visually and audibly with plaintiff and defense counsel, the more likely they are to develop the rapport and trust that can mean the difference between success and failure.