Opposing counsel is not your enemy. Talk to one another before the mediation.
It is such a simple idea, but one that is often ignored. There is so much to be gained and nothing to lose in speaking to opposing counsel a day or two before a scheduled mediation. Let opposing counsel know how your client sees the case and why they see it that way. No one likes to be blindsided at a mediation. No one wants to appear to be unprepared in front of their client. This is counterproductive to the goal of working together to try to resolve the case. Provide opposing counsel with any new information or documentation that supports your client’s case. It is particularly important to provide an insurance company with the information in advance of mediation because insurers need time to digest, discuss and reevaluate the case. It is difficult for them to pivot if new information is provided for the first time at the mediation.
Let opposing counsel know who is going to be at the mediation and what their expectations are. This can help opposing counsel tailor their opening statement to help manage your client’s expectations and can also help opposing counsel manage their own client’s expectations. If you represent a corporate entity, let opposing counsel know what their position is at the company and how much power that person holds in moving the needle at the mediation. If someone whose presence is required at the mediation cannot attend, speak to opposing counsel about this. Don’t wait until the day of mediation to address it. This has happened at a number of my mediations and at best, it slows down the process and at worst, can result in the mediation failing to go forward. If you represent someone who does not speak English, let opposing counsel know how you intend to handle that. I have seen some cases where the opposing party has agreed to pay for a professional interpreter to make sure the other side completely understands everything that is said at the mediation.
If settlement discussions have taken place prior to mediation, talk to opposing counsel about starting the negotiations where the parties left off. I know sometimes this isn’t possible because there have been additional fees and costs incurred since the pre-mediation negotiations took place, but if these negotiations occurred close to the time of the mediation, it could make sense to agree to start where the parties left off. This certainly can save time at the mediation.
One other benefit that can come out of talking to opposing counsel right before the mediation: is a settlement. An open discussion right before the mediation may get the case resolved and extinguish the need to go to mediation.