How to Prepare for Mediation: Creating a Mediation Plan

Successful outcomes in mediation rarely hinge on improvisation. Instead, they emerge from deliberate, strategic planning — and in my experience, from a mindful approach that helps both counsel and client remain clear, focused, and adaptable throughout the process.

Approaching mediation with a clear, thoughtful plan can help counsel and clients not only identify legal positions but also uncover emotional stakes, settlement priorities, and potential roadblocks to the negotiation.  This exercise, when conducted in advance, can lead to a more focused and productive mediation session.

This isn’t just a tactical exercise. It’s also about cultivating presence — the ability to respond during negotiations rather than react under pressure. A reaction is often instinctive and emotionally driven, triggered by external stimuli or the behavior of others. In contrast, a response is deliberate and thoughtful, rooted in an understanding of both the situation and one’s objectives.

In the context of mediation, reactions can lead to misunderstandings, escalations, or missed opportunities. For example, a strong emotional reaction to an opposing party’s offer might cloud judgment and limit creative solutions. On the other hand, a measured response takes into account the bigger picture — the goals of the mediation, the interests of both sides, and the long-term impact of any decision made.

The ability to respond thoughtfully is deliberate and can be rooted in mindfulness, a practice that encourages individuals to pause, reflect, and consider their options before acting. It involves acknowledging the emotional and cognitive impulses that arise during high-stakes negotiations, but choosing not to be ruled by them. By developing this awareness, attorneys can better maintain composure, focus on their client’s best interests, and engage in negotiations that are both strategic and constructive.

Preparing for mediation with clarity and without judgment helps lawyers and clients alike stay anchored when negotiation gets difficult. Whether you’re handling a commercial dispute, employment matter, or a deeply personal conflict, a sound mediation plan is an imperative.

What a Mediation Plan Should Include

A robust mediation plan should address these key areas:

1. What is the case about?

Begin by distilling the dispute into a clear, objective statement. Summarize the legal and factual issues neutrally. Strip away inflammatory language and legal posturing. How would each side describe the case? How might a neutral summarize it? Encourage your client to articulate their version, too. This may reveal underlying concerns or emotional drivers not fully expressed in pleadings — insights that will be useful later.

2. What are the parties’ positions?

Mediation preparation should be circumspect, not limited solely to your client’s position. Take the time to clearly identify both your client’s and the opposing party’s positions. Understanding each side’s stance allows you to anticipate potential moves and prepare thoughtful responses. It also helps shift the focus from what each party is demanding to why those demands matter, laying the groundwork for a conversation centered on interests rather than outcomes framed in terms of winning or losing.

3. What interests underlie these positions?

Explore what truly matters to your client — and, to the extent possible, to the other party as well. Interests go beyond legal claims and monetary demands; they include motivations, needs, values, concerns, and goals that shape decision-making. These might involve reputational considerations, business priorities, emotional closure, or future relationships. Identifying these underlying drivers allows you to frame settlement options in ways that may resonate more deeply with all parties.

Understanding interests is particularly valuable in contentious or high-stakes matters, where positions may appear entrenched. When you look beyond the surface-level demands and consider why those demands are important, you create space for more creative, flexible solutions — outcomes that may not have been visible through a purely positional lens. 

Mindful tip: Before the mediation, invite your client to reflect — not just on what they want, but why they want it. Ask them to jot down what needs or values are tied to those goals (e.g., respect, stability, autonomy). This kind of intentional self-inquiry can reveal deeper motivations that may not surface in legal strategy sessions but can powerfully inform negotiation priorities.

4. What are the goals of the mediation? 

Define clear objectives: monetary, relational, reputational, or procedural. Distinguish between essential outcomes and those that are preferred or negotiable. This can help shape a settlement path that delivers meaningful results, not just closure.

While financial terms are often central, mediation goals frequently extend to relational, reputational, and procedural outcomes. Your client may want to preserve a professional relationship, protect their public image, avoid protracted litigation, or have their experience acknowledged in some meaningful way. These non-monetary goals can carry just as much — if not more — weight than the numbers on the page.

Distinguish between what outcomes are essential and which are preferred or negotiable. This step helps ground the negotiation in reality while preserving flexibility. Clients often enter mediation with strong attachments to certain results, but upon deeper reflection, they may find that some objectives are symbolic or emotionally driven, rather than truly outcome-determinative. A mindful approach encourages reflection on why particular outcomes matter, helping clients move from reactive demands to intentional priorities.

When you take the time to uncover and rank these objectives with your client, you build a more complete framework for evaluating proposals and making strategic decisions during the session. This kind of preparation supports settlements that are not only acceptable, but meaningful — the kind that address deeper needs and leave the client feeling resolved, not just finished.

Mindful tip: Encourage your client to sit with their goals for a few days before the session. Often, what initially feels non-negotiable shifts with time and reflection.

5. What is your BATNA?

BATNA stands for Best Alternative to a Negotiated Agreement — a concept introduced by negotiation scholars Roger Fisher and William Ury in their groundbreaking book, Getting to Yes. BATNA is the course of action your client will pursue if the mediation does not result in an agreement. It’s the benchmark against which any proposed resolution should be measured.

Helping your client understand their BATNA is essential to maintaining clarity and leverage in mediation. It prevents you from accepting a subpar deal out of pressure, fatigue, or emotional response. It also gives you the confidence to walk away when an offer doesn’t meet your minimum threshold for resolution.

But identifying the BATNA isn’t just about legal strategy; it also requires an honest conversation about risk tolerance. What are the costs — financial, emotional, reputational — of proceeding to trial or arbitration? How long is your client willing to wait for resolution? What uncertainties might affect the strength of your position down the line?

By integrating a BATNA analysis into your preparation, you empower your client to negotiate with purpose and make informed decisions, not from fear or frustration, but from a position of awareness and control. Help your client understand the risks and benefits of continuing litigation, and what a negotiated agreement would need to offer to be worthwhile in comparison.

Mindful tip: Revisit the BATNA the day before mediation. Ask your client how they feel about it now — not just what they think. That emotional insight can be just as important as legal analysis.

6. What types of impediments do you expect?

Anticipate emotional, logistical, and interpersonal challenges in mediation. 

No matter how strong your legal position, unaddressed dynamics can derail even the best-planned mediation. Part of your preparation should include identifying potential emotional, logistical, or interpersonal obstacles and planning for how to manage them.

Start by reflecting on your client’s likely reactions under pressure. Are they prone to frustration, defensiveness, or shutdown? If so, consider how you might support them in staying grounded and engaged. You might rehearse difficult conversations in advance, or introduce simple mindfulness techniques (like breath awareness or pausing before responding) to help them stay present.

Think also about the opposing party’s tendencies. Do they have a history of being combative, evasive, or domineering? How will your client handle this behavior at the mediation - by reacting or responding? What can you do in advance to address this? 

Most cases get to mediation because there has been a breakdown in communications, and the parties can no longer hear each other. What can you do to prevent this from continuing at mediation, and how can you lean on the mediator for assistance? 

Are there power dynamics — real or perceived — that might influence how your client participates? Consider how these dynamics could affect the tone of the session and whether they might require intervention from the mediator.

Don’t overlook logistical challenges, either. Zoom may seem easier, but sometimes people need to be in the same room to have a productive conversation. Are all the necessary decision-makers going to be in the room (or on the screen)? Are there scheduling constraints or communication barriers that could impact the flow of negotiation? Surfacing these issues early allows for creative problem-solving before they become disruptive.

Discuss any potential impediments with your client, not to create anxiety, but to build awareness and confidence. Work with the mediator in advance if necessary: they can help structure the session to reduce conflict, ensure balanced participation, and support forward movement when the conversation stalls. Proactively navigating these barriers can help protect the integrity of the process and keep the focus on resolution.

Mindful tip: If emotions run high, discuss grounding tools your client can use during the session — such as breathwork, pausing before responding, or taking breaks to reset.

7. What is your plan for making offers and counters?

Plan for the exchange of offers in mediation with a clear, intentional strategy. This isn’t just about the numbers — it’s about pacing, signaling, and setting the tone for negotiation. Will you start with a strong anchor to frame the conversation around your client’s valuation? Will you make incremental moves to signal openness, or use brackets to explore potential settlement ranges without fully committing?

Whatever your approach, your moves should be purposeful, not reactive. Each offer or counteroffer should be part of a broader narrative, aligned with your client’s goals and the dynamics unfolding in the room. Shifting too quickly or emotionally can confuse your message or signal weakness. Holding too firm, without context, can stall progress.

Just as important is preparing your client for how this part of the process may unfold. Many clients come into mediation expecting a quick resolution or immediate reciprocity. When that doesn’t happen, frustration or doubt surfaces. The offer exchange is often slow and tactical, and emotional reactions (disappointment, defensiveness, or even elation) are normal but not necessarily reliable guides for decision-making.

Mindfulness can play a powerful role here. Encourage your client to stay focused on the process, not just the outcome, to observe their reactions without judgment, and return to their core objectives when things feel off course. As their advocate, you’re not just moving numbers on a page — you’re guiding them through a layered negotiation in which clarity, patience, and strategic discipline can make all the difference. Make sure you are taking your time, too, and responding to offers in a principled way - as opposed to reacting to an offer you consider inadequate with emotions or cries of bad faith…

Mindful tip: During the offer exchange, help your client stay connected to their goals rather than reacting to perceived slights or surprises. A brief pause or reset can preserve clarity in moments of tension.

Closing Thoughts

Preparing a mediation plan with your client sharpens your strategy and builds trust. It ensures that you’re entering the process with clarity, not just about the facts, but about what your client needs and what you’re prepared to do.