Preparing for Mediation: A Practical Checklist

Effective preparation distinguishes parties who reach durable agreements from those who leave mediation without resolution. This page covers the documentary, strategic, and procedural steps a party should complete before a mediation session, the regulatory frameworks that shape confidentiality and disclosure obligations, and the key differences between preparation approaches across dispute types. Understanding these elements is foundational to participating meaningfully in any mediation proceeding.

Definition and scope

Mediation preparation encompasses all pre-session activities undertaken by the parties, their legal representatives, and sometimes the mediator to ensure the process proceeds efficiently and with full informational parity. The scope of preparation varies by dispute type, jurisdictional rules, and whether the mediation is voluntary or court-ordered, but a core set of tasks applies across virtually all contexts.

The Uniform Mediation Act (UMA), adopted in 12 states and the District of Columbia, defines mediation as a process in which a mediator facilitates communication between parties to assist them in reaching a voluntary agreement. Because that process is largely self-directed, preparation quality is one of the strongest predictors of outcome. The American Arbitration Association (AAA) and the Association for Conflict Resolution (ACR) both publish procedural guidelines that allocate pre-mediation responsibilities to each side, including the submission of mediation briefs and exhibit lists before the session date.

Preparation obligations under mediation confidentiality rules also shape what materials can be brought in and how they can later be used if the matter proceeds to litigation. Under the UMA, communications made during mediation are generally privileged, but documents that existed independently before the session retain their original evidentiary character.

How it works

Pre-mediation preparation follows a structured sequence. The numbered breakdown below identifies the primary phases applicable to most formal mediation settings.

1. Confirm procedural details. Verify the mediator's appointment, the session format (in-person or online), location or platform, duration, and fee arrangement. The mediation cost and fees structure — whether split equally, allocated by agreement, or governed by court order — should be confirmed in writing before the session.

2. Gather and organize documentary evidence. Collect all contracts, correspondence, financial records, photographs, expert reports, and prior legal filings relevant to the dispute. For employment disputes, EEOC procedural guidance indicates that charge documentation and position statements should be accessible at the session (EEOC Mediation Program).

3. Prepare a mediation brief. A mediation brief is a written summary provided to the mediator — and sometimes the opposing party — outlining the factual background, the party's position, and the relief sought. AAA Commercial Mediation Procedures recommend that briefs not exceed 10 pages for standard commercial disputes and be submitted at least 5 days before the session.

4. Identify interests versus positions. Preparation should include an internal analysis distinguishing stated positions (what a party demands) from underlying interests (why they want it). This distinction is central to the principled negotiation framework described in the Harvard Negotiation Project's published methodology.

5. Define a settlement range. Parties should establish a best-case resolution, a target outcome, and a walk-away threshold — sometimes called the BATNA (Best Alternative to a Negotiated Agreement), a term formalized in Roger Fisher and William Ury's Getting to YES (Penguin Books, 3rd ed., 2011). Entering mediation without a defined walk-away point creates vulnerability to pressure tactics during caucus sessions.

6. Prepare an opening statement. Even in mediations where opening statements are abbreviated, parties benefit from preparing a concise factual narrative. For guidance on structure, see opening statements in mediation.

7. Coordinate with counsel. The attorney's role in mediation includes advising on legal exposure, reviewing the mediator's disclosure for conflicts of interest, and helping the client evaluate settlement offers against likely litigation outcomes.

Common scenarios

Preparation requirements shift meaningfully depending on the dispute category.

Family law mediation. In family law matters — including divorce, custody, and asset division — preparation involves compiling financial disclosure documents (tax returns, bank statements, property appraisals) and, where minor children are involved, school and medical records. At least 32 states have statutes or court rules requiring financial disclosure exchanges before family mediation (National Center for State Courts, State Statutes and Court Rules on Family Mediation).

Commercial disputes. Commercial mediation preparation is heavily document-intensive. Parties typically exchange damages calculations, contract interpretations, and expert valuations in advance. The AAA and JAMS both provide pre-mediation information exchange protocols in their published rules.

Court-ordered civil cases. Under court-ordered mediation programs, local court rules frequently specify submission deadlines and brief length limits. The Federal District Court for the Northern District of California, for example, maintains a published ADR Local Rule requiring joint mediation statements 14 days before the session.

Employment and EEOC matters. The EEOC Mediation Program processes approximately 10,000 charges per year through mediation and provides a pre-mediation information sheet to both parties outlining session logistics and confidentiality protections.

Decision boundaries

Not all preparation strategies are appropriate in all contexts. Three contrast points clarify where standard preparation practice reaches its limits.

Represented vs. self-represented parties. Attorneys can conduct legal analysis of settlement value; self-represented parties lack that resource and should request the mediator's procedural guidance document before the session, which most programs provide as a matter of course.

Evaluative vs. facilitative mediators. Preparation for a session with an evaluative mediator (who may offer opinions on likely legal outcomes) should include stronger legal research and damages documentation. Preparation for a facilitative mediator focuses more heavily on interests and relationship dynamics. The distinction between mediator styles is addressed in detail at types of mediation.

Confidential vs. open briefs. Some mediators request confidential briefs — shared only with the mediator — while others use open briefs shared between all parties. Confidential briefs allow candid disclosure of a party's actual priorities, while open briefs serve an anchoring function. Parties should clarify this format with the mediator before drafting, since the role of the mediator in managing information asymmetry depends partly on what each side has disclosed.

Preparation that fails to account for mediator style, dispute category, and jurisdictional rules is a documented contributor to impasse in mediation, making procedural diligence not merely advisable but structurally important to the process.

References

• Uniform Mediation Act — Uniform Law Commission
• EEOC Mediation Program — U.S. Equal Employment Opportunity Commission
• National Center for State Courts — Alternative Dispute Resolution
• AAA Commercial Mediation Procedures — American Arbitration Association
• Federal ADR Program — United States Courts
• Association for Conflict Resolution — ACR