By Leslie King O’Neal
Mediation Representation—Underappreciated & Misunderstood
While representing clients in mediation is part of most construction attorneys’ practices, few attorneys receive formal training about this aspect of their work. Mediation representation training is given short shrift compared to its more glamorous cousin, trial advocacy training. As a result, most lawyers develop their mediation skills on the job through trial and error. This is unfortunate, since most construction cases resolve through mediation or other settlement processes. Mediation representation skills are critical to achieving clients’ goals, but they are underappreciated and misunderstood.
New Resources About Mediation Representation
Prof. John Lande’s[i] recent article, The Art of Mediation Representation: Helping Clients Make Good Decisions[ii] is a valuable resource for construction lawyers. The article notes the critical roles attorneys play in mediation through counseling clients in preparing for mediation and in advocating for clients at mediation sessions. In addition to a list of books about mediation representation techniques, it provides useful checklists of mediation preparation tasks for attorneys[iii] and checklists for mediators.[iv]
Misconceptions About Mediation Representation
A major misconception about mediation representation is that it happens only at a mediation session. In this view, the attorney’s role is simply going to the mediator’s office, making an opening statement and sitting with the client while the mediator takes offers back and forth. If the parties reach settlement, the attorney may help draft the settlement agreement. But this is only a small part of what mediation representation involves. Prof. Lande notes that attorneys affect mediation success or failure through their client pre-mediation counseling and mediation preparation as well as their advocacy at mediation.
Pre-Mediation Counseling—Foundation for Mediation Success
As mediation has evolved over the last forty years, mediators and lawyers have realized that mediation is a process, not an event. “Getting to yes” at the negotiating table is much more likely if the parties and lawyers have prepared for the negotiation. Whether through a formal process such as “guided choice”[v] or done informally, “[P]re-mediation preparation through information exchange and mediator conferences can make negotiations more productive earlier.”[vi]
Mediation Doesn’t Start at 9 a.m. in the Conference Room
The view that mediation representation begins at 9 am in the conference room is outdated. The better view is that such representation starts when the case begins. Well before any mediation session, the attorney and client should review the facts, consider what additional information is needed for informed settlement (such as insurance information, damages calculations, preliminary expert reports). Discussing insurance issues (e.g. making sure insurers are properly notified) and damages calculations (is there backup for amounts claimed) with clients in advance creates the foundation for successful negotiations at mediation. In addition, having pre-mediation conversations with the mediator can provide insight into potential roadblocks to settlement, so these can be addressed before mediation.
Attorneys’ Dual Roles at Mediation
Sometimes attorneys feel they must be “adversarial advocates” at mediation to show clients and opposing parties they are tough. However, maintaining a hard-line position throughout mediation may backfire, preventing a beneficial settlement for the client. Ideally, attorneys can shift from an advocacy role to a counseling role during mediation to help clients evaluate offers, understand the opposition’s position and work with the mediator to get the best offer and settlement terms. Of course, attorneys continue advocating for the client even in the counseling role, but in a cooperative, less strident way.
Attorneys as “Quasi-Mediators”
Rather than being mere passive bystanders at mediation, Prof. Lande suggests lawyers can act as “quasi-mediators” (seeking dispute resolution options while advocating for the client). In this role, attorneys can work with mediators to develop monetary and non-monetary proposals. In many cases attorneys seek the mediator’s help in discussing sensitive topics with the client. Attorneys can and should suggest proposals to the mediator as well as evaluating the opponent’s proposals. If there are important non-monetary settlement terms, the attorney will have draft language ready to include in a settlement agreement.
Attorney as Psychologist
Understanding the client’s emotional and physical needs is another important, but rarely discussed, aspect of mediation representation. Sometimes clients become stressed or fatigued and want to end the mediation process although the attorney believes negotiations are progressing. Providing words of encouragement and water or a snack or a walk outside may keep things on track. There is evidence that deep breathing gets more oxygen to the thinking brain and reduces the “fight, flight or freeze response,” freeing mental energy for other things.[vii] When preparing clients for mediation, it’s beneficial for attorneys to consider potential psychological barriers to settlement that individuals or organizations may have.[viii]
Takeaways:
- Attorneys have considerable influence on mediation outcomes. Mediation representation begins long before the mediation session.
- Pre-mediation counseling and conversations with the client are critical in helping clients make good decisions and mediation success.
- Attorneys should take an active role in mediation and work with the mediator in developing proposals and offering evaluations.
Resources:
Checklists for attorneys:
John Lande, Real Practice Systems Project Menu of Checklists for Attorneys in Mediation, Legal Studies Research Paper Series, Research Paper No: 2024-30, University of Missouri School of Law (September 24, 2024).
University of Missouri School of Law Legal Studies Research Paper No. 2024-30
This is a detailed menu of checklists for attorneys representing clients in mediation, including actions before, during, and after mediation sessions.
Further reading on mediation representation:
Harold I. Abramson, Mediation Representation: Advocating as a Problem-Solver
(Aspen Publishing, 3rd ed. 2013).
Dwight Golann, Sharing A Mediator’s Power: Effective Advocacy in Settlement
(American Bar Association, 2013).
G. Nicholas Herman, Advocacy in Negotiation and Mediation: A Practical Approach
(Aspen Publishing, 2021).
Michaela Keet, Heather Heavin & John Lande, Litigation Interest and Risk Assessment:
Help Your Clients Make Good Litigation Decisions (American Bar Association, 2020).
Bennett G. Picker & Conna Weiner, Commercial Mediation Practice Guide: A Practical
Handbook for Lawyers and their Business Clients (American Bar Association, 3rd ed.
2023).
Spencer M. Punnett, Representing Clients in Mediation (American Bar Association,
2013).
Jennifer K. Robbennolt & Jean R. Sternlight, Psychology for Lawyers: Understanding
the Human Factors in Negotiation, Litigation, and Decision Making (American Bar
Association, 2nd ed. 2021).
[ii] 43 Alternatives to the High Cost of Litigation 71 (May 2025). The Art of Mediation Representation: Helping Clients Make Good Decisions by John Lande :: SSRN
[iii] Real Practice System of Menus of Checklists for Attorneys in Mediation, https://papers.ssrn.com/sol3/papers.cfm?abstract_id=4967728
[iv] Menus of Checklists of Menus for Mediatorshttps://papers.ssrn.com/sol3/papers.cfm?abstract_id=4650839
[v] Mediation Success with “Guided Choice” https://theconstructionadrtoolbox.com/2024/10/guided-choice-makes-mediation-more-effective/
[vi] Mediation & the “Need for Speed” – The Construction ADR Toolbox
[vii] Deep Breathing and Relaxation, University Counseling Center, University of Toledo https://www.utoledo.edu/studentaffairs/counseling/anxietytoolbox/breathingandrelaxation.html
[viii] See posts: Mediating With High Conflict Personalities—Tips for Attorneys and Mediators https://theconstructionadrtoolbox.com/2025/04/mediating-with-high-conflict-personalities/ and “High Conflict Personalities” & Disputes https://theconstructionadrtoolbox.com/2025/02/dealing-with-high-conflict-personalities-in-mediation/