1. If there are significant obstacles to settlement, inform the mediator before the mediation session.

2. If you intend to invite a non-party to the mediation, clear it with the other party or the mediator first. Confrontations at the start over who is allowed to participate are counter-productive.

3. Make an opening statement. But make sure it’s the persuasive — not poisonous — variety. (This will be the subject of an upcoming post — stay tuned.)

4. Be willing to make the first proposal. There is value in “anchoring” the negotiation in your client’s acceptable range (assuming it’s realistic! see #5).

5. Ensure that your client’s demand or offer is realistic and can be justified. And be prepared to explain how you arrived at it. A plaintiff who makes an exorbitant demand inevitably ends up crowing later that “I’ve cut my initial offer in half, while the defendant has only increased its offer by a fraction.” Sure, but fifty percent of ridiculous is still absurd. The same could be said for a defendant who insists that he’s doubled his opening offer of $10. Two times minuscule is still paltry.

6. Be willing to engage in the “dance” of the negotiation. Trying to “cut to the chase” prematurely can be misleading to the other side. Studies have shown that people are inherently accustomed to engaging in the give-and-take, the exchanging of demands and offers, and they get confused when the other party tries to short-circuit that process by leaping to its “bottom line” or “top dollar.”

7. Explain to your client that your role is different in a mediation than it is in the courtroom. Sure, mediations (especially the joint sessions) call for advocacy. But they also require the attorney to put on a “counselor” hat, engaging in reality-checking with the client about the risks and possible unfavorable outcomes of litigating. This is perhaps the most challenging aspect of mediations for trial lawyers.

8. If your client will require a particular form of settlement agreement, show it to the other side in advance or early in the process. This helps avoid surprises at the end.

9. Remind your client that in almost all cases, the other party will somehow need to justify the resolution in their own minds (or to a spouse or someone else whose opinion they value). So in order for them to accept a proposed settlement, they must feel like they “got something” or at least “saved face.” Sometimes you can offer things that mean more to the other side than they cost to your client.

10. If your client’s offer or demand is the best and final proposal, tell the mediator to characterize it that way to the other side. Also, if you say it’s take-it-or-leave-it, make sure your client means it.