Back to Articles List 2/1/2007 << PREVIOUS || NEXT >>
By: Paul Bielaczyc

Getting to the bottom line at mediation many times depends on how well all sides have done their work beforehand. In a common A vs. B tort or contract case, anticipation is present at the beginning of a mediation concerning the opening numbers for negotiations. This anticipation is heightened when virtually no settlement discussions have occurred prior to the mediation. This lack of dialogue can become complicated if the discovery process has been a virtual wrestling match. As a result, in order to get to the bottom line and achieve a settlement at mediation for a common tort or contract case, guidelines can be followed that will potentially promote resolution of the dispute.

Get Your Work Done Well in Advance

Knowing that a case is going to mediation, the parties should keep in mind whether or not they will be able to get their discovery done. There is no reason to schedule the deposition of a plaintiff or defendant on the day of mediation, or within close proximity to the mediation date. Equally important, do not schedule the independent medical examination within days of the mediation. This type scheduling will prevent you from having the opportunity to advise your client of the results of the deposition or examination. This type of scheduling with the upcoming mediation will only complicate a party’s ability to obtain the appropriate settlement authority.

When discovery is not obtained in a timely manner, discretion should be used in filing motions to compel prior to the mediation. The sting of a motion to compel can carry over into the settlement negotiations and create obstacles for potential resolution. And don’t play keep away with your discovery forcing the motion to compel. This tactic may later bring a motion in limine to preclude the evidence based on the keep away strategy. If necessary and possible, work with the other side and the mediator to continue the mediation date so to complete your discovery work.

Make Sure You and Your Client are on the Same Page

Over and over again, attorneys fail to adequately prepare their clients for mediation. Attorneys also fail to adequately get themselves familiar with the expectations of their client for purposes of case settlement. Be sure to meet with your clients well in advance of the mediation instead of hours before it commences. This way you can adequately prepare your client for what may happen from the settlement discussions. In that way, if bad news does arrive at the mediation, it won’t be the first time that your client will have heard this information. You will not be surprising your client when you explain the reasons for the low settlement offer or the high demand.

Meeting with your client well in advance will also give you the opportunity to be adequately prepared to explain the case to not only the mediator but to the other side. Your meeting with your client in preparation for the mediation may end being one the most important events of the case timeline. And doing it far enough in advance will allow you to create persuasive arguments at mediation for your settlement position. This will demonstrate that you have strong command of the facts regarding your client and don’t have to defer to your client for an explanation of how the accident happened or what caused the breach of contract.

Get a Handle on Your Case

Having met with your client well in advance of the mediation should give you the opportunity to create an outline for purposes of discussing the case intelligently and articulately with the mediator and the other side. This outline can be a condensed, single page version of your settlement demand letter or case evaluation report with the date of accident or date of breach of contract, subsequent treatments relating to an injury matter with costs for treatment or efforts to mitigate a breach of contract and associated damages. The documentation to support this does not need to be in any great volume. Bullet points setting out dates and dollars works precisely and effectively.

Also, be ready to explain applicable law as it relates to the case. This applies both for plaintiffs and defendants. Credits and offsets may be present for a damage value that can affect settlement negotiations. Don’t find out for the first time at the mediation what your client’s total medical expenses are as a result of an accident. Know why treatments are being discounted and the basis for same. The same applies for a breach of contract action. Don’t look to your client to explain why they have a damage claim as a result of a breach of contract. Know the numbers inside and out and be ready to explain applicable law for any liens, credits, offsets or potential mitigation. That way, when asked by a mediator does the Hanif case apply you won’t have to ask who Hanif is.

Develop a Strategy for Negotiation in Order to Dance

Before getting to the mediation, the attorney and client should have an understanding of the strategy for negotiation to commence the negotiation dance. The attorney should be ready with his client’s consent to set out a realistic and reasonable opening settlement demand/offer keeping in mind the bottom line number. The attorney and client should understand what increments they are going to attempt to move in corresponding negotiations so to continue the dance. At all times, you should stay within the original strategy plan and keep on negotiating while recognizing concessions may have to be considered that will result in adjustments of this original strategy plan.

With all the work that is done in preparation for a mediation, a party does not want to be forced to throw in the towel and walk out of a mediation because the so-called negotiation dance is not going according to plan. At that point, all efforts should be undertaken to engage additional discussions with the mediator to facilitate alternatives to overcome a potential negotiation impasse. This may result again in modification of the negotiation strategy plan. However, reaching the bottom line should never be out of focus as that is the one of the purposes of the mediation. Being patient with the negotiation will allow the dance to continue if you are still within range of your settlement target.


Using guidelines in the common tort or contract action at mediation can help achieve success for a potential settlement. They can be applied with equal success for any more complex case or for any Mandatory Settlement Conference. These guidelines include 1) being adequately prepared by getting your discovery done well in advance of the scheduled mediation; 2) meeting with your client long before the scheduled mediation in order to fully understand all facts of the case and to confirm settlement strategy; 3) creating a litigation outline that explains the facts regarding an accident or breach of contract with damage claims including applicable law for any liens, credits, offsets, and mitigation; and 4) have a strategy for the negotiation so that the dance that occurs in the dialogue of the mediation results in achieving the magic number for a resolution of the dispute.

Paul Bielaczyc is a mediator working on all areas of general civil litigation. He is a panelist for both the Santa Barbara and Ventura Superior Court Mediation programs. You may call (805) 565-8725 for more information or to view the profile of Mr. Bielaczyc, go on-line to or by going to the Santa Barbara County Superior Court CADRe website at

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