How to prepare for mediation, for attorneys, comes down to one idea: the mediator can only move numbers that the people in the room have the information and authority to move. Prepare by choosing the right neutral, mediating at the right time, sending a brief built around damages and risk, getting decision-makers and carriers there with real authority, preparing your client, and walking in with a drafted term sheet.
That is the checklist. The rest of this article explains each step from the mediator's side of the table. I am a plaintiff-side trial lawyer and a mediator through AMAJ, and I see the same avoidable mistakes from plaintiff and defense counsel alike. If you represent either side in a California employment case, this is what I wish every lawyer did before the day.
Step 1: Pick the right neutral
The mediator should be someone both sides, and both clients, will listen to when it matters at 6 p.m.
- Subject-matter fluency. FEHA, CFRA, Labor Code § 1102.5, PAGA, and wage-and-hour damages each have their own math. You should not have to teach the mediator the case.
- Trial credibility. A neutral who has stood in front of juries can say "a jury will not like that" and be believed.
- Style. Facilitative, evaluative, or a mix. Some cases need a mediator willing to say a number out loud; others need patience.
- Process. Ask whether the mediator holds pre-mediation calls, makes mediator's proposals, and follows up after an impasse.
Step 2: Get the timing right
Mediate too early and nobody knows enough to move. Mediate too late and attorney's fees have become the obstacle. The sweet spot in most employment cases is after:
- the personnel file, pay records, and key policies have been produced;
- the plaintiff's deposition, and ideally the decision-maker's, are done; and
- both sides have a defensible damages model,
but before expensive expert work and summary judgment briefing. In fee-shifting cases, every month of litigation raises the number the defense must pay to close.
Step 3: Use the pre-mediation call
As a mediator, I hold a call with each side before the session. Use it. Tell the mediator, confidentially:
- what has driven the case so far, and what is really blocking settlement;
- who is coming and who holds authority;
- any non-monetary terms that matter (reference, resignation, reinstatement, confidentiality);
- personality issues, emotional dynamics, or a client who needs to be heard; and
- outstanding liens, Medicare issues, or related claims (workers' compensation, unemployment) that could derail a deal.
Step 4: Write the brief the mediator actually reads
Mediators read briefs carefully, but we read for different things than a judge. Skip the forty pages of facts and give me the levers.
Brief checklist
- A one-page summary of the claims, the defenses, and the procedural posture, including trial date if set.
- A damages model with the math shown: back pay with mitigation, front pay, emotional distress range, penalties, and interest. Defense counsel should model the same numbers, not just attack them.
- The key documents, attached and tabbed: the termination memo, the complaint email, the timeline, the text message. Five exhibits, not fifty.
- A realistic verdict range based on your venue and facts, with an honest view of punitive damages exposure.
- Fee exposure. A prevailing FEHA plaintiff can recover attorney's fees and costs under Government Code § 12965, while a prevailing employer generally cannot unless the claim was frivolous. Since 2021, Labor Code § 1102.5(j) has also authorized fees for a plaintiff who prevails on a whistleblower retaliation claim. Plaintiff counsel should state current lodestar; defense counsel should state defense spend to date and through trial.
- Prior offers and demands, and why the gap exists.
- A confidential section for the mediator only, candidly naming your weak spots. Mediation confidentiality under Evidence Code § 1119 protects this.
Send it at least five court days before the session so the mediator can prepare and, if you are exchanging briefs, so the other side has time to digest it.
Step 5: Decision-makers and carriers with authority
The single most common reason employment mediations fail is that the person who can say yes is not in the room.
- Defense: Bring someone from the company with real settlement authority, not a manager who must call the CFO at 5 p.m. If an employment practices liability (EPLI) carrier is involved, the adjuster should attend, or be on call, with authority that matches the case value. Address retentions, consent clauses, and coverage disputes before the session.
- Plaintiff: Bring anyone your client will consult before agreeing: a spouse, parent, or adult child. A deal accepted by a client who then calls home is a deal at risk.
- Both: Make sure your client has signed the mediation confidentiality disclosure required by Evidence Code § 1129 before the session.
Step 6: Prepare the client
In my practice, client preparation is the difference between a settlement and an impasse. Before the day:
- walk through the timeline, the waiting, and the separate rooms;
- explain the realistic range and the net recovery after fees, costs, and liens;
- warn that the first offer will be low (or the first demand high) and is a signal, not an insult;
- discuss tax allocation and the non-monetary terms you will ask for; and
- for employers, prepare the business owner or HR leader to hear the plaintiff's story without reacting.
Step 7: Opening numbers, brackets, and the proposal
Opening offers
Open with a number you can explain. An extreme opening does not anchor a seasoned mediator; it costs you two hours. A modest but defensible first move keeps the other side engaged.
Bracket strategy
Brackets ("we will go to X if you go to Y") move a stalled negotiation by revealing the midpoint. Use them deliberately: the midpoint of your bracket is the number you are effectively proposing. Respond to brackets with your own bracket, not with silence.
The mediator's proposal
When the gap narrows and positions harden, a mediator's proposal lets both sides accept a number without appearing to concede. Answers go only to the mediator; if one side declines, the other's answer stays confidential. Ask the mediator in advance whether and when they use proposals, and prepare your client so a deadline does not catch them off guard.
Step 8: Draft the term sheet before anyone leaves
Bring a draft memorandum of settlement on your laptop. A deal that is not written down tonight may not exist tomorrow. Include:
- the amount, payment deadline, and wage/non-wage allocation;
- scope of release, Civil Code § 1542 waiver, and dismissal;
- confidentiality drafted within the limits of Code of Civil Procedure § 1001 and the carve-out language Government Code § 12964.5 requires for non-disparagement clauses;
- no-rehire, reference, and non-disparagement terms;
- a clause stating the agreement is enforceable or binding and admissible, to satisfy Evidence Code § 1123; and
- a request that the court retain jurisdiction under Code of Civil Procedure § 664.6, which permits signature by the parties or their attorneys.
Step 9: If there is no deal
An impasse is not the end. Many cases settle in the days after mediation, once tempers cool and decision-makers reflect. Before you leave, agree on next steps: a follow-up call, outstanding discovery that would change the analysis, or a mediator's proposal with a deadline. As a mediator, I follow up after every session until the deal is signed, because that is often when the gap closes.
Choosing a trial lawyer as your mediator
I mediate through AMAJ, a Pasadena-based ADR education and dispute-resolution institute I am spearheading. My firms have tried nine cases in a twelve-month span, and I bring that trial perspective to both rooms. My full-day mediation is $10,000, all-inclusive, with pre-mediation calls with both sides, an evaluative view when it is useful, and post-session follow-up until the deal is signed. See my mediation page and accolades, and share what to expect at employment mediation with your client.
Book your next employment mediation
Knowing how to prepare for mediation is what separates productive sessions from expensive days of waiting: the right neutral, the right timing, a brief built on damages and risk, authority in the room, a prepared client, and a term sheet ready to sign. Plaintiff and defense counsel alike are welcome to contact Jonathan LaCour to check availability or schedule a pre-mediation call.
Frequently asked questions.
When is the best time to mediate an employment case in California?
Usually after core documents are exchanged and the plaintiff's deposition is taken, so both sides can value the case, but before expert discovery and summary judgment drive fees higher. In fee-shifting FEHA and Labor Code 1102.5 cases, waiting too long often makes plaintiff's attorney's fees the biggest obstacle to a deal.
What should a mediation brief include?
A short summary of claims and defenses, a damages model with the math shown, the five or so documents that matter most, a realistic verdict range, current attorney's fee exposure, the negotiation history, and a confidential section for the mediator candidly identifying your weaknesses. Send it at least several days before the session.
Who needs to attend an employment mediation?
Someone from each side with full settlement authority. For employers, that means a company decision-maker and, if an EPLI policy applies, the insurance adjuster with authority. For employees, it means the client and anyone they will consult before agreeing, such as a spouse. Missing authority is the most common cause of impasse.
What is a mediator's proposal?
A mediator's proposal is a settlement number and terms the mediator recommends to both sides when negotiations stall. Each side privately tells the mediator yes or no by a deadline. If both accept, the case settles. If either declines, neither side learns how the other responded, so no one loses face.
How do you make a mediation settlement enforceable in California?
Sign a written term sheet before leaving that states it is enforceable or binding, so it is admissible despite mediation confidentiality under Evidence Code section 1123. Ask that the court retain jurisdiction under Code of Civil Procedure section 664.6, which allows signature by the parties or their attorneys.