Making Your Case in Mediation: Why Simply Sending Information Is Not Enough

Welcome to this installment of mediation tips and tricks. 

In many cases, participants share a pre-mediation packet. In a settlement judge or court context, this process is typically more formal, involving briefs or an issues list. In mediation, it’s more informal, often consisting of information participants believe supports their position and demonstrates their superior understanding of the case. Sharing such materials is encouraged, as it offers several benefits. It helps parties organize their thoughts and provide relevant details upfront.

However, many people—whether attorneys, clients, adjusters, construction companies, or landowners—walk into mediation with a sense of premature confidence.

After introductions are made, when the mediator asks if they want to present their case, they often respond, “We sent our packet.” Some even turn to the mediator and say, “I sent them the documents. They know the case.” Assuming the packet does all the talking is a mistake. Relying solely on pre-submitted materials misses a critical opportunity to influence the other side. Here’s why:

Why Presenting Your Case Matters

If you have a strong case, mediation is the perfect forum to showcase what makes it strong—directly, actively, and with purpose. Remember, you’re not trying to convince the mediator; your target audience is the other side. Your goal is to make them reconsider what they stand to gain (or lose) if the case goes to litigation. One key objective should be to make the opposing party’s Best Alternative to a Negotiated Agreement (BATNA) look far less appealing.

Even if you’ve provided a thorough pre-mediation packet, highlighting the key points during mediation makes them more impactful. For instance:

• If you’re arguing that construction that disturbed land has harmed your crop, show a picture of a thriving crop alongside an area where the crop hasn’t regrown.

  • Demonstrate the lost production clearly—e.g., "We lost production on one acre of land." What is the appropriate damage amount? Bring a receipt from what you sold from other areas or refer to the USDA webpage for legitimate criteria.

• If the dispute involves water damage from a roof, use photos of the damaged roof to establish causation. If you’ve had damage inside and brought in a remediation team, include photos of wet drywall or water readings inside to clearly link the roof damage to the resulting losses.

  
  

Using visuals or tangible evidence to support your claims in mediation strengthens your argument and provides essential context. Everyone is busy, and it’s easy for someone to miss a key picture or detail in the packet. Presenting this information in the session also gives the mediator clear criteria to guide the conversation and build agreement.

The Power of Numbers—With Rationale

Too often, lawyers or adjusters simply state an arbitrary demand, like $100,000, expecting that number to carry weight on its own. Without a clear explanation, the other side may dismiss it as baseless or even a nuisance.

To avoid this, break down how you arrived at the number. Detail the expenses, losses, or damages that justify it. Explain why your valuation isn’t just a starting point but is firmly rooted in a realistic and strong litigation perspective. Frame Your Argument for Impact

When presenting your case in mediation:

• Be specific: Connect your claims and numbers with concrete evidence, such as photos, reports, or documents from your packet.

• Project confidence: Show that you’re not just making a demand but are prepared to win in court if necessary.

• Stay clear and logical: Make your rationale easy to follow so the opposing side sees both the merit and seriousness of your position.

  
  

Final Thoughts

A well-argued case sets the tone for productive negotiation, turning your numbers into a compelling reality for the other side to reckon with. Don’t miss the chance to make your case—clearly, assertively, and with a strategy that speaks directly to the opposition’s concerns. Your goal is to overcome objections from the other side and make their litigation position seem weaker.  The mediator is neutral but the more data that supports your case, the more ways the mediator can help guide the conversation.