Most cases settle. If your client is in litigation or headed there, this fact alone should steer him toward sharpening his settlement skills. A dry run will improve his odds of obtaining a good settlement. This technique is extremely useful in high-value business cases, but it can be just as effective in smaller, non-business cases.

Dry Run It

Say your client is the decision-maker for his business and you need to prepare him for his first settlement conference. Locate a trained neutral to conduct the mock session. The neutral plays the role of the settlement officer. Your client plays himself. This is critical:  his approach to the settlement conference will be based on what he experiences first-hand in the practice session. His business associate plays the opposing party. You play the opposing counsel. That way, you will fully appreciate the strengths and weaknesses of the opposing case and, thus, be in a better position to advise your client. Someone from your firm plays your client’s attorney.  

The neutral is likely to convene a joint session with both parties and attorneys to determine the status of settlement negotiations. At some point, the neutral may suggest breaking into separate, private sessions and will shuttle back and forth with proposals. The mock session should encompass at least two rounds of proposals. Ninety minutes is ideal with thirty additional minutes to debrief it.


Demonstrates the value of a negotiation plan. One of the worst things your client can do is react solely in response to his opponent’s moves. Too many times I have seen Party A react to Party B’s “outrageous” proposal by saying, “I’ll show her; she needs to get reasonable. Tell her I will go to [fill in tiny move from previous proposal].” Not only does this give control of the process to the Party B, it increases the chances of impasse because it fails to communicate Party A’s settlement zone.  

Advise your client to draft an action plan following the mock session laying out all the possible moves his opponent might make as well as your client’s responses. In the real session, when the opponent winds up for a punch, your client will be able to see it coming, duck, and land an effective counter-punch.

Tests your client’s emotions so he can get them under control. A dry run is like a stress test. It puts your client under pressure so he can see how it feels and how he performs. He can get used to the pace of the process and the pressure created by the neutral and his opponent to come up with the next move. If the veins in his neck start to pop, it is better to find out in the mock session what his trigger points are and how they affect his decision-making. Again, having a written negotiation plan will allow him to react strategically, not emotionally. Additionally, gaining a better understanding of your client’s emotions, as well as hearing a neutral highlight the interests of the opposing party, may be key to settlement. 

Develops poise under fire. Practice gives your client confidence. He may feel empowered to speak up in front of the settlement officer, which will demonstrate his preparedness and emphasize his control of the situation. Part of his confidence comes through feedback from his business associate playing the opposing party. The associate can tell your client how he came across to the “opponent,” what he heard your client say (may be different from what your client thought he said), and what processes he went through in responding to your client’s moves. This is invaluable information.

Things to Watch Out For

Does not take the place of counsel. The neutral does not give legal advice; that is strictly counsel’s role. The dry run may, however, sharpen the legal issues for your client. While playing opposing counsel, you may state the opponent’s arguments in ways your client has not heard or thought about before. This is another way you can help your client avoid being knocked off balance in the real session.

Adds some cost. There will be some added cost for the neutral’s time and your firm’s time. The expense is worth it if significant money or other business interests are at stake.


Effective counsel will prepare his client for settlement conference by going over procedures, issues, and positions. However, there is nothing like having your client experience it himself. It is hard to learn how to play golf by reading a book; you have to get out and play. You would not start the season by heading straight to a tournament. A dry run is like a practice round with your friends who are all trying to make you a better player.

John Greer is the principal of Patuxent Mediation Services, LLC. He may be reached at (410) 772-8821 or