Pre-Mediation Call – Setting the Table

As a litigator, I found pre-mediation calls productive. As a mediator, I find them essential. If we haven’t worked together, this is often our first conversation. If we have, it’s likely our first time discussing this case. These calls are my first opportunity to get the parties to start thinking “slowly.” 

My goal: turn the mediation day into a space for reasoned decisions, not reactive ones. Low stress. Reduced cognitive load. Few distractions, minimal unproductive fatigue, a safe place to think. Pre-mediation calls signal that the mediation day, which always provides twists and turns, will be handled with a steady hand.

I steal heavily from behavioral economists Daniel Kahneman and Richard Thaler. If you want more theory behind these ideas, at minimum, add Nudge and Thinking, Fast and Slow to your reading list.

Set Expectations, Reduce Uncertainty

After introductions, I outline how I run mediations, obtain feedback, get buy-in. If we haven’t discussed joint sessions, I won’t surprise you with one on mediation day. If you’ve submitted an in-depth brief, I won’t ask for opening statements.

For example, I rarely start with joint sessions. I typically begin with plaintiffs.  For defendants, we may set your start time later or establish you’ll have thirty minutes to yourself at the beginning of the day. For plaintiffs, you’ll know we’ll be talking first thing.

If we deviate, we’ll discuss it first. No surprises to start the day. You'll understand my process, what matters to me, what you can expect from me. That’s part of why I’m publishing this series.

If anything feels off or you prefer a different approach, we’ll discuss it.

Understanding the framework for the day will allow you to set expectations with your client. And when the day unfolds as you described, client stress drops and reasoned decision-making improves.

Address Technical / Logistical Hurdles

After setting process expectations, we’ll address logistical or technical issues. Anyone on Zoom needs a quiet, distraction-free space with reliable internet, good screen, and quality audio. Travel concerns, location, parking, security passes, we’ll discuss those. The mundane details get handled here so they don’t drain cognitive bandwidth later. As much as possible, we remove friction before the day begins.

Obtain Pre-commitments

I’ll also ask for commitments:

• A commitment to the agreed-upon structure.

• Acknowledgment that emotions will run high at times—and that this is normal.

• A commitment to stay at the table and keep working even when things get tense.

• A commitment that all necessary decision-makers will be present, not just available.

Pre-commitments matter because they help build our process that we can rely on when the inevitable moment of frustration arrives.

Framing and Questions for the Day

If I have your brief, I’ll ask some questions I don’t expect you to answer immediately, but that we’ll discuss on mediation day.

We’ll also discuss what’s not in your brief. I’ll run through issues I suggested you review with your client:

• Cash flow concerns.

• Quarter-end concerns.

• Accounting issues.

• Incentive plans affected by resolution.

• Flat-fee agreements and payment tranches triggered if the matter doesn’t resolve.

• Other cases that may affect mediation scheduling and attention.

• Internal political issues affected by your case.

• Where this case fits in your client’s broader life.

• Non-legal realities might drive (or derail) settlement.

We’ll discuss interactions with opposing counsel. Have you litigated with them before? How is your working relationship? Have you had any interaction with them before the mediation?

Depending on how our conversation flows, you may have homework:

• Think through a “pre-mortem” and a lost trial.

• Think through your best alternative to negotiated agreement (I promise, I’ll try not to say “BATNA”).

• Three questions for the other side that might change your perspective.

I won’t put you on the spot or ask for immediate answers. These are topics I’ll ask you to think through with your client and to be prepared to discuss on mediation day.

Why the Pre-Mediation Call Matters

The pre-mediation call is the first step in building rapport. We’ll agree to a structure and framework we can fall back on when the mediation day inevitably throws us surprises. It is the first step in trust building and the creation of a space where your client can make reasoned decisions.

Next week, we’ll talk locations.

Until then,

Monday x Morello Mediation.

None of this is legal advice. Your mileage may vary.