Pre-Mediation Moves: What Smart Lawyers Do Before They Log On

Practical steps that lead to better outcomes at mediation

In employment cases, mediation is often the best shot at resolution. But the heavy lifting happens well before anyone logs into Zoom or walks into a conference room. Lawyers who consistently get good outcomes tend to approach mediation as a process that starts long before the mediator joins the call.

It’s not about over-preparing—it’s about preparing the right way. Here are the moves that experienced employment lawyers make before mediation starts, and why they matter.

1. Make Sure the Timing Is Right

Not every case is ready for mediation just because it’s on the calendar. One of the first things good lawyers do is step back and ask whether both sides are actually in a place where settlement is realistic.

• Is your client ready? Are they emotionally prepared to hear hard truths, face uncertainty, and make decisions under pressure?
• Is the other side posturing or participating? Are they showing signs that they’re open to resolution, or are they still deep in litigation mode?

If one or both parties aren’t there yet, the session can become performative—or worse, it can entrench positions and delay real progress. Timing matters.

2. Prepare the Client—and Actually Listen to Them

All clients come to mediation with expectations—some realistic, some not. Even seasoned professionals may misunderstand what mediation is really about. That’s why it’s critical to walk through it with them beforehand.

• Explain what the mediator does (and doesn’t do). They’re not there to decide the case or deliver a ruling.
• Let them know that compromise—not “winning”—is the goal.
• Talk through the emotional side. In employment cases, especially where termination or discrimination is involved, clients may feel wronged or want a sense of justice.

But this isn’t just about educating the client. It’s also a chance to hear what really matters to them. Sometimes they’ll bring up issues that haven’t come up in litigation but could be important in settlement discussions.

3. Write a Mediation Statement That Helps the Process

The mediation brief isn’t just another version of the summary judgment motion. It’s your opportunity to frame the case in a way that makes resolution feel possible—not just for the mediator, but for the other side.

• Tell the story clearly and with a focus on what matters most.
• Address risk where appropriate. If the mediator sees that you understand the case’s weaknesses, they’re more likely to help the other side do the same.
• Keep the tone constructive. This doesn’t mean giving in—it means sounding like someone the other side can work with.

A mediation brief can go a long way toward setting the tone for a productive day.

4. Think Through Bargaining Points Before the Session

Too many mediations stall because one or both sides walk in with a number—but no flexibility. Before the session, take time to think through what might help bridge the gap.

Some examples of useful bargaining points:

• Neutral references or agreed-upon language.
• Timing of payments (e.g., installments vs. lump sum).
• Extended COBRA coverage or other benefits transitions.
• Tax treatment or allocation of payments.
• Confidentiality or non-disparagement terms.

These options won’t work in every case, but the point is to show up with more than one path to resolution. The more prepared you are to talk about different ideas, the more likely the mediator can help both sides find common ground.

5. Set Expectations About How the Day Will Actually Look

In most California employment mediations, joint sessions are rare. But clients often assume they’ll be sitting across from the other side, making their case directly.

That usually doesn’t happen—and it’s important to let clients know that before the session starts.

• Explain that the mediator will likely go back and forth between rooms, and there may not be any face-to-face meeting at all.
• Let them know they may have a lot of downtime, especially if the mediator is spending time with the other side. They need to know that this isn’t a sign that things are going poorly—it’s just part of the process.

Managing these expectations early helps prevent frustration during the day.

6. Don’t Assume the Other Side Is There for the Same Reason You Are

A common trap: assuming that because the other side showed up, they must be ready to settle—and they must be expecting to land somewhere near your numbers.

That’s not always the case. In fact:

• They might think you are the one who will move toward them.
• They may be there to test your position, not resolve it.
• They might be participating because the court required it.

This is why it helps to talk with opposing counsel before the session. A quick call can clarify whether both sides are coming in with resolution in mind—or whether someone is just checking a procedural box. These conversations also help avoid assumptions about motive or mindset that can get in the way of progress.

7. Help Your Client Prepare for the Emotions of the Day

Mediation can be draining—especially for parties in employment cases who feel wronged or want acknowledgment. Even when things go smoothly, the process can be emotional.

Help your client prepare by:

• Letting them know they might hear things that feel unfair or hard to take in.
• Explaining that they may spend time waiting while the mediator talks to the other side—and that silence doesn’t mean something is going wrong.
• Making sure they feel heard before the session starts. If they’re carrying frustration or anxiety into the room, it’s better to surface it early.

Clients who know what to expect emotionally are less likely to get rattled when the process gets tough.

8. Know What You’re Willing to Do—And Where You Can Flex

Before mediation, take time to think through not just your ideal outcome, but your workable ones.

• What’s the fallback plan if a deal doesn’t get done?
• Where can you move, and where do you need to hold firm?
• Are there conditions that make certain moves acceptable?

You don’t need to lock into a final number. But you do need to walk in with a plan, and ideally, some room to maneuver. Mediations often turn on small, timely decisions—and you’ll make better ones if you’ve already thought through the range of outcomes.

Final Thoughts

Good results at mediation don’t come from luck. They come from preparation—the kind that takes into account not just the legal claims, but the people involved, the timing, and the tone of the process.

Lawyers who get the most out of mediation show up ready. They’ve managed their client’s expectations, thought through their own goals, and looked at the case from the other side’s point of view. They don’t assume. They ask. They plan. And they leave room to adapt.

That work doesn’t happen during the mediation. It happens before you log on.