The Most Important Call…
As a mediator, one of the most common challenges I see is this: counsel arrive at mediation expecting to negotiate, only to discover that one or both sides are missing key information, haven’t clued in on settlement ranges, or haven’t even had the difficult client conversations yet. By the time we sort through these gaps, half the day is gone – and with it, much of the optimism for resolution.
There’s a simple (and too often ignored) way to avoid this: pre-mediation calls.
Why Pre-Mediation Calls Matter
Mediation is not just about showing up and negotiating. It’s about making the best use of everyone’s time and resources to move the case toward resolution. Employment matters, whether single plaintiff or large class actions, are especially complex. They involve sensitive facts, nuanced damages calculations, and often high emotions on one or both sides.
A preliminary pre-mediation call with the mediator can surface critical issues in advance. Without it, you may only realize too late that essential groundwork still needs to be completed before the parties can reach a deal.
And here’s the key point: this is not just a best practice – it’s your right as counsel.
The cost of mediation is simply too high, and the social capital you spend convincing your client to mediate – and to trust a particular mediator – is too significant for you to settle for anything less than a fully prepared, maximally effective mediation process. You and your client are entitled to expect that the mediator will be ready to make the most of that investment.
What Litigators Should Ask Before Booking
Before you even put the mediation date on the calendar, ask the mediator:
“Do you typically schedule pre-mediation calls with counsel?”
“If not, are you open to setting one?”
Most mediators respect the request. But not all will schedule these conversations automatically. Unfortunately, overbooked mediators often don’t think to do it without being prompted but as good as they are in mediation, they can only do so much if the foundation hasn’t been properly and fully set for mediation. So even the best mediators may be limited by circumstances that could have been resolved in advance. Asking up front ensures you can build this into your prep and get your clients’ needs met.
Goals for a Pre-Mediation Call
For employment cases, here are the specific objectives each mediator should set for the pre-mediation conversation:
- Clarify the key issues. Identify whether liability, damages, or both will be the sticking points.
- Confirm what information has been or will be exchanged before mediation. For example, time records, payroll data, personnel files, or damages analyses.
- Discuss client readiness. Is the plaintiff emotionally prepared to negotiate? Has the employer lined up necessary authority and settlement ranges?
- Reality testing. The mediator can give early input on whether the parties’ expectations are wildly apart — before the clock starts running on mediation day.
- Logistics and structure. Who will be attending? Are there time limitations (like with a client in another time zone)? How will sensitive issues like terminations or confidentiality be addressed?
Why This Preparation Pays Off
Without this step, mediation day can devolve into a scramble: counsel realize they don’t have the data they need, the other side’s positions blindside clients, or someone simply isn’t prepared to put real numbers on the table. That kind of inefficiency costs your client time, money, and goodwill.
With a pre-mediation call, both sides arrive informed, aligned, and ready to do the real work: negotiating a deal that makes sense.
Just as important, a pre-mediation call also ensures you’ve made some headway with the mediator: giving them the opportunity to mentally prepare for challenges, anticipate nuances in dynamics, and begin thinking about how best to guide the conversation. Beyond all of this, it creates a foundation of trust and readiness so that when mediation day arrives, the parties can focus on resolution instead of scrambling through preventable roadblocks.
Final Word
As a litigator, don’t leave it to chance. Before walking into a mediation, ask your mediator about pre-mediation calls. And if they don’t typically schedule them, request one. Setting clear goals and expectations in advance isn’t extra – it’s essential. Your clients are counting on you not just to show up, but to show up prepared. And you have every right to demand that your mediator does the same.
