How to prepare for a commercial mediation

What preparation is actually for

Mediation is often described as a day, which understates it. The day is where a prepared negotiation concludes, and where an unprepared one becomes visible.

Preparation does not mean assembling the strongest possible version of the argument. Both sides arrive convinced of their case, and a mediator has heard the strongest version of both by mid-morning. Preparation means arriving with three things settled internally: what the company needs from a resolution, what it will accept, and what it will do if it gets neither. A party that has settled those questions can negotiate. A party that has not is improvising with real money.

Who must be in the room

The most consequential preparation decision has nothing to do with the merits. It concerns who attends.

The person present must hold authority to conclude the matter that day, within a range agreed beforehand. Where authority sits elsewhere, the session proceeds at the pace of an absent person’s availability, and momentum is the resource a mediation cannot replace once it is lost. The problem is rarely bad faith. It is an organization that treated the mediation as a meeting rather than as the moment of decision, and sent a representative accordingly.

Alongside the decision-maker, two others earn their place. Counsel, in-house or outside or both, who will draft and pressure-test the terms. And the person who owns the commercial relationship day to day, because they alone know which of the proposed terms will actually function once everyone returns to work.

The brief, and who it is written for

A mediation brief has one reader, and briefs are frequently written for a different one.

The persuasive brief, aimed squarely at the opponent, is a familiar instrument and a poor fit for this purpose. The mediator is not deciding anything. What serves the mediator is a document that explains the dispute, sets out the procedural posture, identifies the handful of documents that matter, records what has already been offered and refused, and states plainly where the negotiation is stuck. Ten to fifteen pages is generally enough. A confidential brief, sent to the mediator alone, can go further and name the weaknesses the party would never concede in writing to the other side. That candor is what allows the mediator to be useful rather than merely diplomatic.

Setting a range, and knowing the alternative

A number without an alternative is an opinion. A number tested against an alternative is a position.

Before the session, the parties should cost the path that runs on without a settlement. Legal spend through the next stage and through trial. The management hours the dispute will continue to absorb. The revenue attached to a relationship that stops functioning while its participants remain adverse. The disclosure obligations, the insurance position, and the probability, honestly assessed, of the outcome each side is counting on. That exercise produces the walk-away, and the walk-away is what makes an offer legible on the day.

The range then has three points rather than one: the opening, the expected landing zone, and the figure below which the alternative genuinely is better. A party holding all three can move quickly when the moment comes. A party holding only an opening figure will anchor on it and mistake stubbornness for strategy.

What counsel and the client should agree beforehand

Divided authority within a single party is a more common cause of a failed session than genuine distance between the two sides.

Four questions are worth resolving in advance. Who speaks in any joint session, and to what end. Whether the objective is a payment, a restructured commercial arrangement, or both. What the confidentiality and non-disparagement terms must contain, since these are frequently the last items negotiated and the ones most likely to unravel an agreement at seven in the evening. And what form the settlement takes, whether a private agreement, a stipulated judgment, or a dismissal on agreed terms, because that choice determines what enforcement looks like if a party later fails to perform.

The failure modes worth naming

Certain patterns recur, and each one is avoidable at no cost.

The brief written to persuade the other side rather than to inform the mediator. The representative who must telephone for approval on every movement. The opening figure chosen for its negotiating value and then defended as though it were the assessment. The party that has prepared its case and never asked what the other side actually needs, which is usually the fastest route to a term that costs little and unlocks a great deal. And the settlement agreement nobody drafted in advance, discovered at the end of a long day when the goodwill required to resolve a definitions clause has been entirely spent.

The week after the session

A mediation that does not settle in the room has frequently not failed. It has changed stage.

In its 2025 Mediation Audit, the Centre for Effective Dispute Resolution recorded a further seventeen percent of matters settling shortly after the mediation day, on top of the seventy percent that settled on the day itself. Parties who treat the session as a single, binary event tend to disengage the moment it closes without a signature, and in doing so they abandon a negotiation that has already done most of its work. The positions have narrowed, each side now understands what the other actually requires, and a neutral remains available to carry a proposal across. Preparation should therefore include the days afterward, with authority still live and counsel still instructed.

For the step before this one, see how to choose a mediator. For how a session itself runs, see the mediation process. For the commercial context these matters arise in, see commercial mediation.