A new year is a good reminder to revisit the fundamentals. For those of us preparing clients for mediation in 2026, here are ten things worth thinking about before walking into the room.
- Pick the best mediator for the case. Do you need a specialized mediator? A retired judge? Do you pick the mediator the other side wants? No mediator is going to be perfect for both sides, but the choice of mediator matters to the case. Be sure to think it through!
- Make sure all decision makers attend. The mediation is not going to be successful, or will hit a roadblock, if the parties don’t have all of the decision makers present.
- Prepare, prepare, prepare. You and your client have to be prepared for the mediation. How much you have to do, and what you have to, depends on the mediation. You have to think through and “game plan” the mediation.
- Communicate with opposing counsel. Maintaining an open line of communication with opposing counsel is always a good idea. It may inform you of the guardrails for the mediation, how far the other side may be willing to go to resolve the matter, or whether there is an opportunity to resolve the matter without a formal mediation.
- Keep documents and exhibits handy. Mediations go more smoothly when you have key documents and exhibits ready for the mediator to use, with one side or both. Good mediators use information to move the parties closer to a resolution, and there is no substitute for documents that are evidence in the case.
- Work the deal and the settlement. If you are closing in on a resolution, be attentive to the tangential points. You want to make sure that all issues are addressed as most parties are hoping for a complete resolution. That may not be possible, but make sure that all of the angles are covered.
- “No” to anger, “being right,” and aiming for a total win. “Yes” to patience, professionalism, and making appropriate concessions. Rigidity doesn’t help the mediation process. Being mad and being right might feel good, but they do no help get to a resolution that is voluntary for both sides. Put another way—try to be a good human.
- Be creative. A close corollary to number 7, be on the lookout for resolutions that are outside of the norm. Sometimes, the best resolutions are the ones that people didn’t think about until later in the day.
- It’s the client’s case. Make sure that the client is the one making the final decision. As the lawyer, you can recommend, counsel, and empathize—but at the end of the day, the client has to wake up the next morning and know they made the decision that was best for them.
- Have a game plan in case you don’t resolve. If the case isn’t going to resolve, be attentive to how the mediation is ending and what comes next. The process is confidential, but the parties will know how the day ends, and one party will treat the last number as a ceiling while the other treats it as the floor.
Bernstein Shur’s Construction Group helps developers, contractors, and construction professionals manage risk and keep projects on track at every stage of the project lifecycle. The group provides sophisticated legal solutions spanning contract negotiation, project administration, dispute avoidance, and litigation, drawing on deep experience in the construction industry.
Michael R. Bosse is a construction and litigation attorney with nearly three decades of experience representing developers, contractors, subcontractors, and suppliers across New England. Known for his diplomatic, client-focused approach, Mike advises on contract negotiation and administration, construction claims, mechanic’s liens and Prompt Payment Act matters, eminent domain, condemnation cases, and more. He can be reached at [email protected].