Mediation Planning: What Makes For Successful Mediation?

Meaningful intake interviews and effective screening for power imbalances lie at the heart of family mediation. A complete and accurate assessment of the parties’ respective sources of negotiation power to help inform process choice is the most important predictor of successful mediation.

The next most important predictor is the degree to which the clients (and their lawyers) are well prepared. Planning for negotiations, in or out of mediation, takes time and strategic thinking. If one party is better-prepared than the other, there will be a power imbalance in the negotiation which may result in impasse, or an unfair outcome. Either will lead to dissatisfied clients, which is not the reputation you want to build for yourself.

Therefore, skilled mediators need to know to avoid beginning a mediation until both clients (and their lawyers) are well-prepared.

Mediation can be intense and overwhelming work for a client. Sometimes the process breaks down because the client fears they have made too many concessions, or the client has lost track of their true goals. Clients should be advised to consider making a mediation plan before they begin mediation.

Mediation plans should be focused and easy to follow. They should be organized in the same way that the client plans to approach the negotiation. A good mediation plan can help a client stay on track when the mediation gets tough, and can help the client make appropriate and rational concessions without losing sight of their goals. The following items can be included in a mediation plan:

  1. What are the issues that either or both parties need to address? Patient and focused questioning during the intake stage can help the mediator assess the degree to which the clients have clearly identified the issues. These usually fall into one of three categories:
    • Substantive issues: legally defined rights and obligations, such as child support, property division, parenting plan, etc.
    • Process issues: do any preliminary matters need to be dealt with first? What will be the rules of the process? (open or closed mediation, for example). Is there any disclosure required before the process can begin? Is there urgency? Who will be there?
    • Intangible issues: How anxious is each client to avoid litigation? Are there personality factors that need to be considered in the client’s negotiation strategy? What kind of ongoing relationship is sought? Does one party seek an apology? Is one party intimidated by or fearful of the other? Is there an “elephant under the table” that needs to be addressed?
  2. Once the client has defined the issues that are important to them, the next step is to consider priorities among them. Which is most important or most urgently in need of resolution? Will it help the client to get the things they really want by taking other issues off the table, making an early concession or disclosing their real priorities up front?
  3. What are the client’s goals? What does each person wish to achieve on each issue? And is there any conflict between the client’s goals for each issue and the client’s overall goals? Do the parties approach such thinking in similar ways or in different ways, and do they each need to consider how the other might characterize their goals as part of their own planning process?
  4. What are the client’s interests? What are the reasons for the client seeking certain outcomes, prioritizing certain outcomes? Has each party clearly thought through and identified their interests?
  5. Once clients have identified and prioritized the issues, have clarified their goals and identified the interests that motivate them, many mediators may feel that they are ready to begin mediation. However, well-informed negotiation requires deeper analysis. It is not enough for clients to identify their own aspirations; they must also know what their options are if they are unable to obtain their desired outcomes in mediation. What will happen for each client if no agreement is reached? What are their options? Will they litigate? Arbitrate? Do nothing? Negotiate through counsel? Try collaborative process? And for which party is the status quo more acceptable, and has each party thought through the incentives available to encourage the other party to agree to change the status quo?
  6. In other words, what is each party’s best alternative to a negotiated agreement? (BATNA). The analysis should consider issues of power between the parties; the impacts on the children of the various options if no settlement is reached; what those options will cost financially and emotionally; and the impact on the client’s health and financial well-being. What impact will not settling have on the client’s goals, such as maintaining a friendly relationship with the other parent? Is the client fearful of the other party, feeling that not reaching a settlement might put them at risk of retaliation?
  7. As well, each client must be informed of the strength (or weakness) of their legal case. Mediation clients will have a better experience if they have a realistic and informed sense of the nature of their legal rights and obligations.
  8. Each client should be encouraged to consider whether they could do anything, before the mediation, to strengthen their alternatives to an agreement. For instance, in a mediation about which client will keep the family home, client preparation might include research on alternate housing and financing options. By doing so, the parties will be better able to evaluate how badly they want to keep the house, and can therefore improve their negotiation power.
  9. Many mediators feel that the goal of mediation is to reach an agreement. Parties and their lawyers often believe the same thing. This mindset can create a lot of pressure to settle, which can leave parties feeling very dissatisfied with the process, particularly after a long day of bargaining. Clients should be asked to consider the point at which each would be better off not reaching a settlement in mediation? All clients will, ideally, know when the mediation begins the point at which they will walk out of the room. Not only does this give a party greater negotiation power, it helps minimize the risk of a client claiming later that the mediator applied duress to reach an agreement.
  10. Clients should anticipate possible trade-offs that may emerge in the negotiation; which trade-offs on which issues may be acceptable to them? How will they strategize to give the other party a concession that has minimal value to them?
  11. Each client should contemplate how the other will respond to all of these questions. What are they going to see as the issues? Which will be most important to them? Why? What will they do if no settlement is reached; how attractive is their alternative to a negotiated agreement?
  12. Mediators should encourage clients to anticipate the obstacles to settlement. What might effectively overcome impasse in such situations? Obstacles to settlement are generally one of three types:
    • Strategic obstacles to reaching agreement: (e.g. one person is negotiating in a positional, adversarial manner and the other is being collaborative or using interest-based bargaining strategies.)
    • Principal-agent conflicts/challenges: (e.g. the lawyer and the client have different information, different styles, perhaps even different objectives.)
    • Cognitive barriers: (e.g. loss aversion; reactive devaluation; sunk costs.)
  13. Each client should be prepared with their opening points in the mediation; where will you begin and why?
  14. Mediators should educate clients about the concept of “creating value”. This requires them to anticipate what the other client will want or need and consider ways to help them achieve that…. while also obtaining that client’s own goals. Clients should be asked: What is your strategy for creating value? Where will you seek to create value? Why? What will you do if the other side does not respond as you anticipated?
  15. Likewise, clients should be prepared to “claim value” at the appropriate time. They should understand the consequences of claiming value too much, too soon or too aggressively. Each client should consider a strategy for claiming value, understanding that “hard bargaining” in mediation is not prohibited, but that is may have adverse and unanticipated consequences.
  16. Consider encouraging clients to use charts, graphs or any other visual presentation of their mediation/negotiation strategy. For instance, a plan might illustrate the “bargaining range” on each issue.
  17. Ask clients how they intend to keep track of concessions made and their value as the mediation progresses. Too often clients make reach the end of the mediation feeling that they have made too many or disproportionate concessions, whether they have in fact done so or not. Keeping track of concessions as they are made can help clients assess as the process evolves whether the concessions have been more or less equivalent in number and value. It can also help reassure a reluctant party who is balking at the end of the process that they have in fact made appropriate concessions and avoid impasse. It can also help the parties engage in principled bargaining if, as an impasse-breaking technique, the mediator proposes ‘splitting it down the middle’. If the parties have not reached the impasse in a principled way, this mediator intervention (which on its face seems neutral) could in fact favour one side of the other unfairly, particularly if one side has been bargaining harder than the other up until that point.


By using these strategies, mediators can help their clients be well-prepared for mediation and also have confidence that they will not be taken advantage of in the process. This will help make the process more effective, more efficient and likely more successful.

About Hilary Linton

Hilary Linton is a Toronto lawyer, an accredited family mediator, an experienced family arbitrator and an alternative dispute resolution trainer.