Many (many) years ago when I was in college, I spent Thanksgiving Day with a bachelor uncle at a football game. In celebration of the season, we bought a frozen turkey on the way home . . . and sadly discovered that you can’t just toss a turkey in the oven and call it Thanksgiving. 
A good Thanksgiving dinner requires a lot of planning and preparation, and mediation is similar in many ways. It’s unlikely to go well unless you put work in ahead of time. But when you do, even people who don’t get along can leave satisfied with the result.
Who is coming to dinner?
Knowing who should be there and how they get along is as important in mediation as it is for Thanksgiving. We all know that the named parties are necessary participants in the mediation. However, there may be other “decision makers” or even third parties with an interest in the mediation that should be invited. For example, a defendant company in a discrimination claim may be covered by employment practices liability insurance (EPLI). Depending on the terms of the EPLI policy, the company may not have settlement authority, or perhaps the carrier needs the company’s consent to settle. Those details need to be addressed early.
Counsel, clients, and carriers need to consider carefully who the decision makers are so they can make sure the right parties attend. Other dynamics may be in play for the employee, who may need a friend, spouse, or some other nonparty to help him in the decision-making process. Finally, in looking over the guest list, you may find that there are parties holding a lien or a claim to benefits overpayments, and those outside parties may need to be heard before resolution is possible.
A good dinner requires a good cook, and good mediation requires a good mediator. Parties who rush to mediation at the last minute may be losing any opportunity to work with a particularly good mediator. The availability of good mediators is limited, and some mediators are better for specific types of cases than others. The parties need to plan well ahead to make sure they invite the right person for the job.
Turkey or turducken?
Know what the parties expect to see on the menu because those expectations matter. If people are confronted with something unexpected or something they aren’t prepared for, the results may be poor. Lawyers will be well served to prepare for mediation, prepare their clients for mediation, and prepare the mediator for mediation.
Preparing for mediation varies by case. There’s a fine line between collecting the information necessary to have a meaningful discussion and investing so much time and effort in a case that the traditional benefits of mediation, such as a timely or less expensive resolution, are lost. Counsel should therefore be diligent about planning mediation well ahead of time and not waiting until the last minute to prepare the case. Lawyers should use their time for targeted discovery (fact-finding and the exchange of evidence). Discovery can be used to appropriately present the case and help clients and the mediator get the most out of the process.
Opposing lawyers should also be proactive in discussing the case with each other. If there won’t be a settlement offer or the employee won’t ever move from an initial demand, counsel should communicate those facts when deciding how—and if—mediation should be used.
Managing client expectations can be difficult. It seems that lawyers often don’t want to take on the difficult task of evaluating the case with a client when that means telling the client something she may not want to hear. Nevertheless, it’s a disservice to the client to allow her to rely on unrealistic expectations and a disservice to the mediation process to expect the mediator to be the bearer of bad news. Clients need to be well educated about the strengths and weaknesses of the case well before mediation begins and should consider traditional remedies as well as nontraditional solutions that may help resolve the case.
A successful mediation may hinge on communications with the mediator before the mediation occurs. Those discussions may help the mediator understand the issues in the case over time, as opposed to digesting the case over a few hours. As a result, the mediator may able to steer the case toward resolution through independent conversations with each side. In that regard, the parties may want to consider using both public and confidential mediation summaries and make sure to provide the mediator with appropriate information well ahead of the mediation itself.
Finally, the parties should feel free to break with tradition based on the particular dynamics of the case. In some cases, the traditional opening session, in which the parties face each other and hear about the case from the other perspective, may simply exacerbate volatile emotions. In other cases, that open session may allow one side or the other to feel that their case is being heard by the opposition.
Don’t wing it!
Preparation and planning will help bring about a successful result, at Thanksgiving and in mediation. Making sure the right people are invited, the prep work has been done, 
and everyone knows what to expect are all critical ingredients to help the parties carve up an agreement so nobody’s time is basted.
Christopher J. Pyles is co-Chair of the Labor and Employment Law group and a member of the litigation team at Sulloway & Hollis, P.L.L.C. , practicing in the firm’s Concord, New Hampshire, office. He may be contacted at cpyles@sulloway.com.