Preparation determines outcome more than advocacy on the day.
Esshaki Legal Media TeamCurrent as of December 2024
Most commercial cases settle, and most settle at or around a mediation. The work
that makes it productive happens beforehand.
Authority. The person in the room must be able to say yes to the number the
case is worth. A representative with limited authority guarantees an adjournment.
A decision analysis. Probability-weighted outcomes across the realistic
range, net of fees, discounted for time. Clients settle poorly when the only
frame offered is win or lose.
Exchange of information first. Where the dispute turns on a document, a
computation or a valuation the other side has not seen, disclosing it in advance
gives the mediator something to work with. Withholding it for effect wastes the
day.
The brief. Short, addressed to the mediator rather than to the opponent, and
candid about weaknesses — mediators cannot move a party they do not understand.
Consider whether it is exchanged or confidential.
Non-monetary terms identified in advance: releases, confidentiality,
references, ongoing commercial arrangements, payment timing and security. These
are frequently what closes the gap.
Term sheet on the day. Signed before anyone leaves, covering the essential
terms including the release scope and payment mechanics. Agreements left to be
documented later are the ones that come apart.
Follow-up. A mediator’s proposal after an impasse resolves a substantial
share of cases that adjourn without agreement.