In my 30+ years as both a trial attorney and mediator, I’ve learned that HOW you approach mediation often shapes the outcome just as much as the negotiations themselves. The negotiation process is a crucial part of your negotiation strategy.

For example, many lawyers skip opening statements, fearing they’ll escalate tensions. But in certain cases, a brief, targeted opening can help one side feel genuinely heard or remove roadblocks to settlement.

I saw this firsthand in a catastrophic injury case I handled. The key issue was whether the defendant was acting within the scope of his employment at the time of the accident. The employer denied liability and was only offering nuisance value.

Opposing counsel and the mediator wanted to skip opening statements. I agreed to mediation on the condition that I be allowed to give a brief opening. I had compelling social media proof that contradicted the employer’s position, and I chose to reveal it at mediation in front of them. That process decision led to a resolution.

But here’s a critical takeaway: in most cases, surprising the other side with new information at mediation is a mistake. Often, key decision-makers have limited authority, and if they don’t see critical facts beforehand, they may not have the ability to settle. In different circumstances, I would have disclosed that information earlier.

Process and timing matter.

Have you thought about:

• Who makes the first offer and whether that choice sets the right tone?
• Whether to share your mediation brief in advance to frame the discussion?
• If tactics like brackets or a mediator’s proposal will help or backfire?
• Clarifying exactly which issues are on the table in multi-issue cases?

Addressing process issues before mediation begins can significantly improve your results. Every mediation is unique, so strategic thinking about process is time well spent.

How have issues of process affected your mediation experience?