What to bring to mediation falls into seven categories: a written pre-mediation brief for the mediator, the documents that prove your case, financial and insurance records, your settlement numbers on paper, confirmation that whoever is at the table can actually approve a deal, a working understanding of the confidentiality agreement you’ll sign, and the tools to draft a term sheet before anyone goes home. Pack all seven and you give yourself a real chance of leaving with a signed deal.
A Written Pre-Mediation Brief
If you prepare only one thing, make it this. A pre-mediation brief (sometimes called a mediation statement or position statement) is a written summary sent to the mediator before the session. Many courts and private mediators require one. Even when they don’t, submitting one keeps you from burning the first hour explaining background facts.
A strong brief is compact and covers: a short paragraph identifying the parties and claims, an objective factual summary, the key legal issues, an honest read on both sides’ strengths and weaknesses, a summary of prior settlement talks and why they stalled, and a suggested settlement range. Flag the non-legal obstacles too: personality conflicts, continuing business relationships, emotional barriers. The mediator can’t defuse what they don’t see coming.1U.S. District Court for the Southern District of New York. How Do I Write an Effective Mediation Statement
Keep the tone measured. Rhetoric belongs in closing arguments. If the mediator asks for a confidential brief sent only to them, you can be candid about weaknesses and your bottom line. If the brief is shared with the other side, hold those cards closer.
The Documents That Prove Your Case
Mediators aren’t judges, but the other side still needs to see that your claims hold up. Bring originals or clean copies of everything you’d use at trial, organized by topic with tabs or labeled folders.
Personal Injury
Bring the police or incident report, your complete medical records and treatment bills, photographs or video of the scene and your injuries, and any witness statements. If you’ve finished treatment, bring a letter from your doctor summarizing diagnosis, treatment history, and prognosis. If treatment is ongoing, bring records showing what future care you’ll need and its estimated cost.
Contract and Business Disputes
The signed agreement is the centerpiece. Bring it with every amendment, addendum, or side agreement. Compile the emails, texts, and letters that show what was promised, what was delivered, and where things went wrong. Add invoices, payment records, and proof of performance or nonperformance. For intellectual property, construction, or professional services cases, bring the specifications, plans, or scope-of-work documents that define what compliance actually looked like.
Insurance Policies
If coverage could apply to any claim, bring the full policy. Under federal discovery rules, any insurance agreement that might cover a potential judgment must be disclosed to the other parties, because knowing the available coverage lets both sides make realistic settlement assessments.2Legal Information Institute. Federal Rules of Civil Procedure Rule 26 – Duty to Disclose; General Provisions Governing Discovery If the insurer has issued a reservation-of-rights letter or a coverage denial, bring those too. With multiple insurers or layered coverage, prepare a simple chart showing each carrier, its policy limits, and its position.
Financial Records and Tax Documentation
Financial paper is the backbone of almost every mediation, whether you’re dividing marital assets, calculating business damages, or proving lost wages. Bring more than you think you need. Having a document you don’t reference is cheap; making a claim you can’t back up on the spot is expensive.
Income and Assets
Bring recent pay stubs, W-2 or 1099 forms, and tax returns from the last two to three years. Add bank statements for all accounts and investment account statements. For real estate, bring deeds, mortgage statements, and recent appraisals or tax assessments. If a business interest is at stake, bring profit-and-loss statements, balance sheets, and business tax returns.
Debts and Liabilities
Bring credit card statements, loan agreements, and documentation of outstanding debts. Family law mediations generally require full financial disclosure from both parties. In commercial disputes, liabilities affect how collectible a judgment actually is, which drives what a settlement is worth.
Tax Documentation for the Settlement Itself
How a settlement is allocated determines how much of it you keep. Under federal tax law, damages received for physical injuries or physical sickness are excluded from gross income. Punitive damages are always taxable. Emotional distress damages are taxable unless they reimburse you for medical expenses you paid to treat that distress.3Office of the Law Revision Counsel. 26 USC 104 – Compensation for Injuries or Sickness
Bring documentation that supports allocating proceeds to tax-free categories where legitimate: medical bills, records of physical injuries, and doctor’s notes connecting treatment to physical harm. The time to negotiate tax-favorable language is while the term sheet is being drafted, not months later when your accountant asks how to report the payment. For 2026 returns, settlement payments of $2,000 or more generally trigger a reporting obligation on Form 1099-MISC, a threshold adjusted annually for inflation.4IRS. Publication 1099 – General Instructions for Certain Information Returns for 2026 Returns Payments below the threshold are still taxable unless an exclusion applies, so keep records regardless.
Your Settlement Numbers on Paper
Walking in without a target is how people say yes to things they shouldn’t or hold out for things they can’t get. Write three numbers down on a confidential sheet for yourself and your attorney before the session:
- Your ideal outcome, the result you’d be genuinely happy with.
- Two or three realistic compromise positions you could live with.
- Your bottom line, the absolute lowest offer you’ll accept before walking away.
Ground the bottom line in what actually happens if mediation fails. If your alternative is trial, calculate the cost of additional discovery, expert witnesses, attorney fees, the time delay, and your honest probability of winning. If trial costs $50,000 with a 60% chance of recovering $150,000, your expected value is roughly $40,000 after expenses. That number, not emotional attachment to the case, anchors your walk-away. Run the same analysis from the other side’s perspective so you have a sense of where the deal zone sits, and revisit the math if new information surfaces during the session.
Confirmation That Someone Can Actually Say Yes
Nothing kills a productive mediation faster than reaching a deal and then hearing “I need to check with my boss.” If you’re representing an organization, the person at the table needs authority to approve a settlement within the range being discussed. Federal regulations governing certain mediations require that at least one principal with binding authority attend each session.5eCFR. 49 CFR 1109.3 – Mediation Procedures Many state and local court programs impose similar requirements.
For individuals, the question is simpler but still worth thinking through. If your spouse, business partner, or co-owner has to agree to any deal, bring them or arrange to reach them by phone. If an insurance company is involved, confirm in advance that the adjuster or representative attending has authority to settle up to the amount you expect to discuss. Discovering coverage limits mid-session is a common, avoidable reason mediations stall.
A Working Understanding of the Confidentiality Agreement
Most mediations begin with everyone signing a confidentiality agreement. Knowing what it actually protects, and what it doesn’t, affects how candidly you negotiate.
What’s Protected
Federal law requires district courts to establish confidentiality rules for their mediation and ADR programs, prohibiting disclosure of confidential communications made during the process.6Office of the Law Revision Counsel. 28 USC 652 – Jurisdiction The Federal Rules of Evidence separately bar parties from using settlement offers or statements made during negotiations as evidence in court to prove liability or the amount of a claim.7Office of the Law Revision Counsel. Federal Rules of Evidence Rule 408 – Compromise Offers and Negotiations A majority of states have adopted some version of the Uniform Mediation Act, creating a privilege against disclosing mediation communications in later proceedings.
In practice, the other side generally can’t use your settlement offer against you at trial if mediation fails. The mediator usually can’t be called as a witness, and the mediator’s notes are not discoverable.
What’s Not Protected
Confidentiality has real limits. Documents and information already discoverable don’t become privileged just because someone mentioned them during mediation.8U.S. District Court for the Southern District of New York. Mediation Confidentiality Agreement Statements involving threats of violence or plans to commit a crime are excluded from protection under most frameworks. The terms of any final settlement agreement can generally be disclosed if a party later needs to enforce the deal. Administrative details like whether mediation occurred, whether you attended, and whether it resulted in a settlement are usually not confidential and may appear on the court docket. Read the agreement carefully before signing, and ask about anything you don’t understand.
Tools to Draft the Term Sheet Before You Leave
If mediation works, it often ends with everyone exhausted and the mediator asking whether the basic terms can go on paper before people leave. Say yes. Verbal agreements made in a conference room look different to each side by Monday. Putting key terms in writing before anyone walks out dramatically reduces the chance of the deal unraveling.
You don’t need a full settlement agreement on the spot. You need a term sheet covering the essentials: the amount being paid, who pays it, the payment timeline, which claims are released, and whether confidentiality applies to the settlement terms. If the parties intend to sign a more detailed agreement later, the term sheet should state explicitly that it binds both sides whether or not that final agreement is ever executed. Language about “agreeing to agree” is an invitation for the deal to collapse.
Bring a laptop or tablet so you or your attorney can draft in real time. If specific performance, installment payments, or mutual releases are likely, have template language ready. Think through enforcement too: if one side doesn’t follow through, does the term sheet provide for the court to retain jurisdiction, or will you need to file a new breach-of-contract claim?
Practical Items for the Day
Mediations regularly run six to eight hours, sometimes longer. Bring a notepad and pen for tracking offers, counteroffers, and any conditions attached. A simple calculator helps you evaluate financial proposals without relying on tired mental math. Bring water, snacks, and any medication you might need; energy crashes during a late-afternoon caucus lead to bad decisions. Have phone numbers for anyone whose input you might need: your accountant, a real estate appraiser, a business partner who isn’t attending. Tell them in advance you might call so they’ll actually answer.
If the Mediation Is Virtual
Test your camera, microphone, and internet connection the day before. Use a headset or earbuds rather than built-in speakers to cut echo. If you’re on a laptop, elevate it so the webcam captures your face straight-on rather than from below. Choose a quiet room with a neutral background and close the door. Breakout rooms (private sessions with the mediator) only work if the other side can’t overhear you through a shared wall.
Have all your documents open in separate tabs or windows so you can share your screen quickly. Keep a phone charged and nearby as a backup if your internet drops. If the mediator uses end-to-end encryption, phone dial-in may not be available and all participants will need to join through the app. Scan and organize your key documents as PDFs so you can share them with the mediator during a private caucus without fumbling through paper files on camera.