Checklist · Dispute Resolution

Preparing for and Attending a Mediation: A Practical Checklist

9 U.S.C. § 2

Type: Checklist
Jurisdiction: National
Date: 2025-11-26
Topic: Dispute Resolution

This checklist prepares a party and counsel for a mediation and carries them through to an enforceable agreement, in eight phases. Phase 1 is the arithmetic: the decision tree, the reservation value, and the memo to the client that must be written a week early. Phase 2 is the housekeeping that decides more mediations than advocacy does — authority, liens, and the net figure the client will actually receive. Phase 3 is mediator selection and the submission, including the paragraph about the other side's constraints that matters most, and Phase 4 is the client conversation. Phase 5 is the day itself, phase by phase, with what each is for and why the hour-five trough is not an ending. Phase 6 is the negotiation mechanics: anchoring, concession patterns, bracketing, and when to ask for a mediator's proposal. Phase 7 is drafting the term sheet in the room, including the retained-jurisdiction sentence that must appear in the dismissal order. Phase 8 covers impasse and the sixty days after, and five model documents, an authorities table, a deadline table, and a ranked failure-mode list are included.

Preparing for and Attending a Mediation: A Practical Checklist

Dispute Resolution > Mediation | Published 26 November 2025 - Updated 26 July 2026 | UpLaw - uplaw.us

Mediations are won the week before, in three unglamorous tasks: the arithmetic, the liens, and the phone call about authority.

Keywords: reservation value, authority, liens, submission, bracketing, mediator's proposal, term sheet, retained jurisdiction

How to use this checklist

Eight phases. Each has - [ ] items and a Why it matters, and the traps note. A fictional case — Adaeze Nwachukwu, injured by a delivery van — runs throughout.

Doctrine is in Mediation Advocacy and Negotiation: A Comprehensive Guide to Preparing, Framing, and Closing a Settlement. The narrative is The Room Where It Settles: What Really Happens in a Civil Mediation. The materials are in The Mediation and Negotiation Toolkit.

Phase 1 — The arithmetic

[ ] List discrete outcomes with probabilities summing to one — not a range.
[ ] Assign a gross value to each outcome.
[ ] Compute the expected gross.
[ ] Subtract remaining fees and costs to verdict.
[ ] Discount for time to judgment, including post-trial motions.
[ ] Discount for appellate risk, noting where it is asymmetric.
[ ] Add the negative branch for a rejected Federal Rule of Civil Procedure 68 offer.
[ ] Run the other side's model too, adding defense costs incurred regardless of outcome.
[ ] Check whether an arbitration clause governs the alternative — 9 U.S.C. § 2, and the enforcement line from Prima Paint Corp. v. Flood & Conklin Manufacturing Co., 388 U.S. 395 (1967) through Epic Systems Corp. v. Lewis, 584 U.S. 497 (2018).
[ ] Write the recommendation sentence with a number in it.
[ ] Have an uninvolved colleague sanity-check the probabilities.

Why it matters, and the traps. "Four hundred to eight hundred thousand" is a shrug, not a model. A reservation value is the arithmetic of the alternative, not a wish, and the most common preparation failure is confusing the two.

An arbitration alternative compresses the outcome range, removes appellate risk, and shortens the timeline — which materially weakens a plaintiff's walk-away position. Read the clause before quoting a number.

Worked example. Adaeze's model: 25% defense verdict, 30% at $450,000, 30% at $700,000, 15% at $1.1 million. Expected gross $510,000; $180,000 of remaining costs; two years; appellate exposure on the causation ruling. The honest reservation value is near $480,000. Her stated number that morning was $750,000.

Phase 2 — Authority, liens, and the net

[ ] Ask before the date is set who will attend and what authority they hold.
[ ] Require a representative with full settlement authority where the rules permit.
[ ] Confirm any remote decision-maker's availability and time zone.
[ ] Identify the applicable policy limits and whether the policy is the practical ceiling.
[ ] Identify every lien: health plan subrogation, government program recovery, workers' compensation, provider liens, child support arrears, prior counsel's charging lien.
[ ] Negotiate the liens before the mediation.
[ ] Determine tax treatment and allocation — 26 U.S.C. § 104.
[ ] Compute the client's net at three candidate settlement figures.
[ ] For professional liability, check for a consent-to-settle clause.

Why it matters, and the traps. These three tasks decide more mediations than advocacy does. A day spent negotiating against an undisclosed authority ceiling ends in a phone call to someone who heard nothing.

A $535,000 settlement netting $290,000 is a different conversation from "$535,000," and the client should have had it a week earlier — not at 6:00 p.m. while everyone waits.

Worked example. Adaeze's health plan asserted $95,000; negotiated to $61,000 the week before. Her net at $535,000 was therefore a known number when the mediator's proposal arrived.

Phase 3 — Neutral and submission

[ ] Select for subject-matter fluency, persistence, and style.
[ ] Ask expressly whether the mediator is facilitative or evaluative.
[ ] Ask about prior engagements with either side.
[ ] Confirm whether submissions are exchanged, confidential, or both.
[ ] In the shared submission: what you will prove; the other side's real problem; your own worst fact, addressed; what your client needs.
[ ] In the confidential supplement: the other side's constraints — reserve, budget cycle, publicity, relationship, timing — plus your reservation framework and your client's non-monetary needs.
[ ] Attach only the documents that will actually be read.
[ ] Do not write a brief.

Why it matters, and the traps. There is no decision-maker. The reader carries your position into another room, so the useful submission equips them rather than persuading them.

The paragraph about the other side's constraints is the most valuable thing you can write. A mediator handed it has a plan for the day.

Asking about style prevents the most common complaint about neutrals: a party expecting an evaluation and receiving pure facilitation, or the reverse.

Phase 4 — The client conversation

[ ] Send the arithmetic memo a week early, in writing.
[ ] Explain that the day is long, slow, and undramatic.
[ ] Explain that the mediator will press them, and that this is the job.
[ ] Warn about the hour-five trough.
[ ] Give the net figures, not the gross.
[ ] Ask: what, besides money, would let you consider this finished?
[ ] Discuss whether they want to speak in joint session.
[ ] Tell them to bring food, a charger, and to schedule nothing after.
[ ] Agree in advance how decisions will be made and by whom.

Why it matters, and the traps. A client who first confronts the arithmetic at 5:00 p.m., tired and disappointed, makes a worse decision than one who confronted it on a Tuesday at their kitchen table. The discomfort is the point of the memo.

The question about non-monetary needs is skipped constantly, and in employment, family business, and neighbor cases the answer is frequently worth more than the last increment.

Phase 5 — The day

[ ] Joint session: consider it where the relationship continues or the client needs to be heard.
[ ] Keep any opening short, and about the person rather than the law.
[ ] Caucus: give the mediator your real constraints.
[ ] Expect reality-testing; read it as competence, not hostility.
[ ] Expect long silences between rooms; they are sequencing, not crisis.
[ ] Expect the hour-five trough; treat it as a phase.
[ ] Track the other side's concession increments and extrapolate.
[ ] Keep the client informed between rounds so they are not alone with the wait.
[ ] Do not schedule a hard stop.

Why it matters, and the traps. A mediator who never tells you your case has problems is not working. Assume the same conversation is happening next door.

Almost every mediation that settles passes through a moment when both sides believe it is over. Recognizing that is the single most useful service a lawyer performs on the day.

Phase 6 — Mechanics

[ ] Open high enough to frame, not so high as to signal bad faith.
[ ] Move in decreasing increments, and slow as you approach your number.
[ ] Avoid erratic movement; it communicates nothing.
[ ] Use a bracket to collapse a large gap: "we come to X if they come to Y."
[ ] Introduce non-monetary terms early, not as a last resort.
[ ] Ask for a mediator's proposal when the gap is small and the obstacle is face.
[ ] Tell the mediator your floor when the moment arrives — they can protect it better than you can.
[ ] Do not commit publicly to a number you have not calculated.
[ ] Remember Federal Rule of Evidence 408 protects compromise statements for some purposes, not all.

Why it matters, and the traps. Concession patterns carry more information than the numbers. Decreasing increments signal a floor credibly; a statement that "this is our final offer" does not.

The mediator's proposal works because it is confidential and simultaneous — a party can accept without revealing willingness and decline without revealing resistance. Asking for it too early wastes it.

Worked example. At $800,000 against $310,000, Adaeze's lawyer proposed a bracket at $650,000 / $400,000. Midpoint $525,000. The case settled at $535,000 on a mediator's proposal two hours later.

Phase 7 — Drafting, in the room

[ ] Do not go home to paper it. Sign a term sheet tonight.
[ ] State the amount and the allocation.
[ ] State who pays whom, by when, and how.
[ ] Define the release scope: which claims, which parties, known and unknown.
[ ] State dismissal — with or without prejudice — and who files.
[ ] State confidentiality and its carve-outs, and what may be said.
[ ] Allocate lien responsibility, including a lien discovered later.
[ ] Allocate costs and fees.
[ ] State that the term sheet is binding and enforceable notwithstanding a longer document to follow.
[ ] Put the retained-jurisdiction sentence in the dismissal order — Kokkonen v. Guardian Life Insurance Co. of America, 511 U.S. 375 (1994).
[ ] For a large payment, consider a stipulated judgment held pending payment.
[ ] Compare every clause of the eventual long form against the term sheet.

Why it matters, and the traps. Overnight is when deals die and new terms appear.

The Kokkonen error is the most consequential drafting mistake in this field. Enforcement of a settlement is a separate contract claim requiring its own jurisdictional basis; a stipulated dismissal preserves nothing. The fix is one sentence, and it must be in the order, not merely the agreement.

Phase 8 — Impasse and after

[ ] Ask for the mediator's proposal before leaving.
[ ] Leave your number open with a deadline.
[ ] Ask the mediator to stay engaged; most follow up at no charge.
[ ] Identify the missing information and agree how to obtain it.
[ ] Narrow the case — stipulated facts, authenticity, a discovery schedule.
[ ] Preserve the relationship; those people will accept your number in six weeks.
[ ] Reassess the model with anything learned during the day.
[ ] Walk away without apology if the offer is below your honest reservation value.

Why it matters, and the traps. A fifth of mediations end without agreement on the day, and a large share of those settle within sixty days. The mediation was the discovery phase of the negotiation.

A mediator's disappointment is not evidence that you were wrong.

Model language

A. Authority confirmation

"Before we confirm the date, please identify who will attend for [party] and the settlement authority that person will hold. If any decision-maker will participate remotely, please confirm their availability for the full day and their time zone. Our understanding is that [the court's order / the mediation agreement] requires a representative with full settlement authority to be present."

B. Recommendation sentence for the client memo

"Based on the analysis above — a 25% likelihood of a defense verdict, a realistic verdict range of $450,000 to $1.1 million, approximately $180,000 in remaining fees and costs, roughly two years to judgment, and meaningful appellate exposure on the causation ruling — I recommend that we accept any offer at or above $480,000, and that we consider carefully any offer above $440,000. Your net at $535,000, after fees, costs, and the negotiated lien, would be approximately $290,000."

C. The constraints paragraph, for the confidential supplement

"We believe the following constrains [other party]: the claim was reserved at approximately $[X] in [month]; their fiscal year closes in [month]; a public finding on [issue] would affect [other matters]; and their principal decision-maker has previously resolved comparable claims in the $[range]. We think a resolution structured as [structure] addresses those constraints while meeting our client's needs."

D. Bracket proposal

"We are prepared to come down to $650,000 if [defendant] will come up to $400,000. We are not proposing the midpoint and we are not agreeing to it, but we are prepared to negotiate within that bracket in good faith for the remainder of the day."

E. Term sheet skeleton

"1. [Defendant] shall pay [plaintiff] $[amount] within [N] days of execution, allocated as [allocation]. 2. Upon payment, [plaintiff] releases [defined released parties] from all claims, known and unknown, arising from [event]. 3. The action shall be dismissed with prejudice, each party bearing its own costs and fees. 4. The parties shall submit a dismissal order providing that the court retains jurisdiction to enforce this agreement. 5. [Plaintiff] is responsible for satisfying all liens, including any asserted after execution. 6. The terms are confidential except [carve-outs]. 7. This term sheet is binding and enforceable notwithstanding that the parties intend to execute a longer agreement."

Deadlines to diary

Item	Note
Submission due	Usually 5–7 days before
Lien negotiation	Start 30+ days before
Authority confirmation	Before the date is set
Client memo	7 days before
Rule 68 offer window	Statutory; check timing before mediating
Open-number expiration	State it explicitly at impasse
Long-form agreement	Compare against the term sheet
Dismissal order	Must contain the retention sentence
Payment date	Diary; note the default consequence

Failure modes, ranked

Confusing a wish with a reservation value.
Not confirming authority in advance.
Not resolving liens before the day.
Never giving the client the net figure.
Writing the submission as a brief.
Omitting the other side's constraints from the confidential supplement.
Never asking what the client wants besides money.
Reading reality-testing as bias.
Quitting at the hour-five trough.
Erratic concession patterns.
Asking for a mediator's proposal too early.
Ignoring Rule 68 exposure in the arithmetic.
Not reading the arbitration clause before setting a number.
Going home to paper it.
Omitting the retained-jurisdiction sentence from the dismissal order.

Authorities at a glance

Authority	What it supplies, and where it bites in this checklist
Fed. R. Evid. 408	Compromise offers and statements inadmissible to prove validity or amount — but not privileged, not undiscoverable, and admissible for other purposes. Phase 6.
Fed. R. Civ. P. 16	Case management, settlement conferences, and the trial date — the strongest settlement pressure that exists. Phase 1 timing.
Fed. R. Civ. P. 68	Offer of judgment; post-offer cost shifting where the judgment is no more favorable. A negative branch in the Phase 1 model.
28 U.S.C. § 651	Districts must authorize alternative dispute resolution.
28 U.S.C. § 652	Referral to a neutral and program confidentiality. Phase 3.
28 U.S.C. § 658	Compensation of neutrals.
5 U.S.C. § 571	Administrative dispute resolution framework — agency matters.
5 U.S.C. § 574	Confidentiality of administrative dispute resolution communications.
9 U.S.C. §§ 1–16	The arbitration framework — the alternative, where a clause governs.
9 U.S.C. § 2	Written arbitration agreements valid and enforceable save on general contract grounds.
9 U.S.C. § 10	Narrow vacatur grounds — why arbitration compresses the outcome range.
9 U.S.C. §§ 201–208	International awards.
Prima Paint, 388 U.S. 395 (1967)	Challenges to the whole contract go to the arbitrator.
Moses H. Cone, 460 U.S. 1 (1983)	The liberal federal policy favoring arbitration.
Green Tree v. Randolph, 531 U.S. 79 (2000)	Cost-based challenges need a showing of likelihood.
Rent-A-Center v. Jackson, 561 U.S. 63 (2010)	Delegation clauses send arbitrability to the arbitrator.
AT&T Mobility v. Concepcion, 563 U.S. 333 (2011)	Preemption of state class-procedure conditions.
Epic Systems v. Lewis, 584 U.S. 497 (2018)	Individual-proceeding agreements in employment.
Kokkonen, 511 U.S. 375 (1994)	Retain jurisdiction in the dismissal order or lose enforcement. Phase 7.
26 U.S.C. § 104	Exclusion for physical injury damages; allocation matters. Phase 2.

Adjusting the checklist by case type

The eight phases are constant. What changes is where the leverage sits.

Personal injury and malpractice. Liens and the policy limit are the endgame. Where the policy is the practical ceiling, establish that at the outset rather than negotiating toward it. In professional liability, check for a consent-to-settle clause — the insured's concern is a permanent report, not the money, and that divergence between carrier and insured explains more stalled negotiations than any dispute about the standard of care. See Evaluating and Filing a Medical Malpractice Claim: A Practical Checklist.

Employment. Ask the Phase 4 non-monetary question first, not last. A neutral reference, an agreed departure description, a resignation rather than a termination in the file, benefit continuation, and confidentiality with carve-outs cost the employer little and are frequently worth more than the last increment. And run the Phase 1 arbitration check — after Epic Systems, many of these proceed individually, which compresses the alternative.

Family businesses and partnerships. Use joint session. These parties will be at the same funeral, and a purely caucus-based process frequently fails on facts that would have settled in a room. Look to structure over sum: buyouts over time, valuation formulas, governance changes, put-and-call rights.

Neighbor and property disputes. The durable settlement is a recorded instrument that runs with the land — a boundary line agreement, an easement, a maintenance covenant — not a payment. A verdict does not move a fence. See Resolving a Boundary or Encroachment Dispute: A Practical Checklist.

Special education and agency matters. Statutory mediation is free, confidential, and heavily underused. Bring the data, know the threshold, and state what you want in frequency-and-duration terms rather than in general ones. See Preparing for an IEP Meeting and Filing a Due Process Complaint: A Practical Checklist.

Small and self-represented matters. Court-annexed programs under 28 U.S.C. § 651 handle enormous volumes, frequently with one unrepresented party. The preparation does not change: know the number, know the alternative, bring the documents. See The Self-Represented Litigant's Toolkit.

The day-of packet

Print or carry these. Nothing else.

[ ] The arithmetic memo, with the recommendation sentence.
[ ] The net table at three candidate figures.
[ ] The lien summary, with amounts already negotiated.
[ ] A one-page timeline of the case.
[ ] The key documents — no more than ten, tabbed.
[ ] The authority confirmation email.
[ ] The term sheet skeleton, already drafted, with blanks.
[ ] A release in the form you want, so you are not drafting one at 7:00 p.m.
[ ] Proposed dismissal order language, containing the retention sentence.
[ ] Contact details for anyone who must approve or sign remotely.
[ ] Food, a charger, and nothing scheduled afterward.

On the pre-drafted term sheet. The single most common reason a settled case unravels is that the parties agreed at 6:40 p.m. and started drafting at 7:00 p.m., tired, without a template. A skeleton prepared the week before — with blanks for the amount, the payment date, and the carve-outs — turns an hour of negotiation into fifteen minutes of filling in.

Three sentences worth memorizing

"What is my number, and how did I calculate it?" — in writing, a week early.

"Who is coming, and what authority do they have?" — before the date is set.

"The court retains jurisdiction to enforce this settlement." — in the dismissal order, every time.

Preparing for and Attending a Mediation: A Practical Checklist

How to use this checklist

Phase 1 — The arithmetic

Phase 2 — Authority, liens, and the net

Phase 3 — Neutral and submission

Phase 4 — The client conversation

Phase 5 — The day

Phase 6 — Mechanics

Phase 7 — Drafting, in the room

Phase 8 — Impasse and after

Model language

A. Authority confirmation

B. Recommendation sentence for the client memo

C. The constraints paragraph, for the confidential supplement

D. Bracket proposal

E. Term sheet skeleton

Deadlines to diary

Failure modes, ranked

Authorities at a glance

Adjusting the checklist by case type

The day-of packet

Three sentences worth memorizing

Related Documents