Is Your Mediation Stuck in Impasse?

info on April 16, 2025

Is Your Mediation Stuck in Impasse?

No one walks into mediation hoping for a stalemate.

But sometimes, despite good preparation and solid positions, the negotiation gets stuck. You can solve most mediation problems with tools you already know.

Here’s one tactic I’ve seen work on both sides of the table: WWID or “What Would I Do?”

Before responding to the other side’s offer (or lack of one), pause and ask: If I were in their shoes, how would I respond to what I’m about to do?

It’s a small habit that can lead to smarter moves, especially when the instinct is to push hard or punish the other party for their last move. Think about it. If the other side tried an extremely aggressive tactic on you, what would you do? Most likely, you’d respond in kind or get defensive. You wouldn’t respond by doing what they wanted. And that cycle of retaliation dooms the negotiation to failure.

Because the truth is, most experienced lawyers know how to advocate.

But when you strategically pivot, you get the deal done.

WWID helps keep the focus on persuasion, timing, and momentum. Not just positioning.

That doesn’t mean giving ground.

It means being intentional:

  • Knowing when to let something sit,
  • When to signal good faith,
  • And when to make a move that helps the other side say yes,
  • Or, when to walk away gracefully, leaving the door open.

Whether you’re guiding an adjuster or a client with high expectations, WWID can help you stay strategic.

Follow me for more common sense mediation tips.

Tired of Surprise Mediation Bills? Let’s Fix That

info on April 1, 2025

Tired of Surprise Mediation Bills? Let’s Fix That

You’ve been there. The mediation is progressing towards settlement, but the other side is dragging their feet. Each minute, your client is calculating the cost of your legal fees and the fees of the mediator.

After 30+ years litigating, trying, and mediating cases, I know how unpredictable costs can upset clients and interfere with the potential for settlement.

That’s why I’m now offering a flat fee mediation option—so you and your clients know the cost up front.

Flat Fee Mediation Options

  • Half-day and Full-day Mediations
    Clear, upfront pricing—no surprises.
  • Complex Multi-party Cases
    Higher flat fee based on prep and time. I’ll work with you to set a fair fee that fits your case and your budget.
  • Hourly Rate Still Available
    Flat fee is just one more option—choose what works best for your client.

Why Flat Fees?

  • No unexpected charges if the mediation runs long
  • Eases client anxiety about costs
  • Streamlines settlement discussions
  • Especially helpful in smaller cases where trial may not be feasible

Giving Back

One of our values at Sage Mediation Solutions is giving back to the community. I’m also offering a limited number of:

  • Pro bono mediations for nonprofit organizations
  • “Low bono” flat fee mediations for selected smaller cases

If you’d like me to consider your case for one of these, just give me a call.

Let’s remove the financial guesswork and focus on resolution.

Want to talk about a case? Contact me directly—I’d be glad to help.

One Mediation Tactic You Might Be Overlooking

info on March 21, 2025

Unlocking the Power of Choice Through Mediation

In my 30+ years as both a trial attorney and mediator, I’ve learned that HOW you approach mediation often shapes the outcome just as much as the negotiations themselves. The negotiation process is a crucial part of your negotiation strategy.

For example, many lawyers skip opening statements, fearing they’ll escalate tensions. But in certain cases, a brief, targeted opening can help one side feel genuinely heard or remove roadblocks to settlement.

I saw this firsthand in a catastrophic injury case I handled. The key issue was whether the defendant was acting within the scope of his employment at the time of the accident. The employer denied liability and was only offering nuisance value.

Opposing counsel and the mediator wanted to skip opening statements. I agreed to mediation on the condition that I be allowed to give a brief opening. I had compelling social media proof that contradicted the employer’s position, and I chose to reveal it at mediation in front of them. That process decision led to a resolution.

But here’s a critical takeaway: in most cases, surprising the other side with new information at mediation is a mistake. Often, key decision-makers have limited authority, and if they don’t see critical facts beforehand, they may not have the ability to settle. In different circumstances, I would have disclosed that information earlier.

Process and timing matter.

Have you thought about:

  • Who makes the first offer and whether that choice sets the right tone?
  • Whether to share your mediation brief in advance to frame the discussion?
  • If tactics like brackets or a mediator’s proposal will help or backfire?
  • Clarifying exactly which issues are on the table in multi-issue cases?

Addressing process issues before mediation begins can significantly improve your results. Every mediation is unique, so strategic thinking about process is time well spent.

How have issues of process affected your mediation experience?

Strengthen Your Mediation Negotiation With MESOs

info on March 13, 2025

Strengthen Your Mediation Negotiation With MESOs

Want a simple way to improve your mediation outcomes? Start with MESOs.

What in the world are MESOs? Multiple Equivalent Settlement Offers (MESOs). Instead of making a single settlement proposal, MESOs involve presenting two or three different offers that are equally valuable to your client but structured in different ways. This approach has several advantages:

MESOs Signal Reasonableness. Offering options signals flexibility and a willingness to compromise—both of which can build momentum toward resolution. Because the proposals are equally valuable to your client, it doesn’t cost your client anything to use this approach.

MESOs Reveal Valuable Information. How the other side responds can provide insight into their priorities and interests. They may be more concerned about a payment structure, timing, confidentiality, or another non-monetary term. Knowing this helps you refine your negotiation strategy.

MESOs Encourage Creative Thinking. When parties get stuck in positional bargaining, MESOs can help shift the focus to creative solutions that better meet both sides’ needs.

Of course, MESOs need to be carefully structured—each option should be truly equivalent in value to your client. If not, you may be bidding against yourself. But when used strategically, this technique can move a stalled negotiation forward and increase the likelihood of a successful resolution.

Have you used MESOs in mediation?

Who Are You Trying to Persuade?

info on March 6, 2025

Who Are You Trying to Persuade?

Trial lawyers are trained to persuade—judges, juries, opposing counsel. But persuasion looks different in mediation. Here’s a key shift in strategy: Your mediation memorandum isn’t about convincing the mediator.

Mediators don’t decide cases—we help the parties reach an agreement. The most effective mediation memoranda aren’t aimed at us; they equip us with the arguments and insights we can use to help persuade the other side.

And here’s something else to consider: Persuading the opposing party isn’t the same as persuading their lawyer. What moves an insurance adjuster, business owner, or individual plaintiff to compromise may be very different from what influences their counsel. A strong memorandum focuses on both and provides the mediator with tools to speak to both audiences.

If trial strategy permits, consider sharing your memorandum—or a sanitized version—with opposing counsel in advance. The earlier you put non-confidential key issues and realities on the table, the better the chances of a productive mediation.

Mediation is advocacy, but it’s also strategy. Focus your memorandum on the real decision-makers, and you’ll have the best chance at achieving a good settlement.

#Mediation #TrialLawyers #Litigation #Negotiation #CaseResolution #MediationStrategy

Leveraging Trial Skills in Mediation Success

info on February 24, 2025

Leveraging Trial Skills in Mediation Success

As trial lawyers, we put a lot of effort into developing our deposition skills, trial skills and negotiating skills. When we mediate for a client, we use many of the same skills, but we have to adjust our approach if we want to have the best outcomes.  Below are some of my thoughts about how you can adjust your trial and litigation skills for success in mediation.

  1. Strategic Communication: In trial, our communication style is often assertive and is focused on persuading the judge or jury to accept our client’s position as truth. In mediation, lawyers often make the mistake of focusing on what would persuade the mediator rather than the other party. In mediation, the focus should be on providing information to the mediator that will persuade the other party to accept what you believe is a good settlement. The difference is subtle, but it’s important. It is far more important to consider what would persuade the other party than it is to convince your mediator.
  2. Preparation and Research: Mediation requires you to know your case just as you would for trial. But preparing for mediation requires you to spend time trying to understand the other party’s interests. Especially in business litigation, those interests often are broader than just writing or receiving a check. If you develop insights into the other party’s interests, you will have a better chance of developing a settlement proposal that you both can accept.
  3. Questioning Techniques: The ability to ask insightful questions during direct and cross-examination can be adapted in mediation. Even though you won’t be able to cross-examine the opposing party directly, be prepared to ask your mediator to ask questions to the other side about their case. The other side may not allow the mediator to share the answers, but in mediation, you are after more than answers. When your mediator asks the other side critical questions about their case it can help them see weaknesses in their position or even a different path to reaching settlement. Use your mediator to explore the motivations of the opposing party and uncover areas of potential agreement.
  4. Reading the Room: Trial lawyers learn to gauge the reactions of the judge and jury. Try to read the emotions and dynamics of your mediator and the opposing party, adjusting your tactics as necessary. While the settlement terms are always important, it’s possible to miss a great settlement opportunity if you ignore the emotions of the other participants.
  5. Demeanor: Mediation requires a more open demeanor and approach than trial. When you are trying to negotiate a settlement remember that it’s never a good idea to aggravate someone who can hurt your client by doing nothing. The goal is to get the other party to engage, not walk away.

When mediating, consider how you can advocate for your client without being combative. With a little thought and effort, trial skills can be harnessed into effective mediation skills.

Helping Your Clients Navigate Settlement Decisions in Mediation

info on February 5, 2025

Helping Your Clients Navigate Settlement Decisions in Mediation

As lawyers, we’ve all been in the situation where a potential settlement looks like it’s in the client’s best interests . . . . but the client wants to walk away. It’s an issue that requires your legal knowledge, patience, and strategic guidance.

When a client hesitates to accept an offer or demand that you believe is reasonable, it can help to take a methodical approach to either help your client see the light or help you understand their perspective.

🔹 Clarify the Settlement Proposal– Before assuming your client’s resistance is misguided, make sure the client understands the proposal. Walk through each provision and explain the impact. Clarity is key.

🔹 Understand Their Concerns – Clients may reject a settlement for a variety of reasons. Ask your client open-ended questions such as: What about this proposal doesn’t sit right with you? What outcome are you hoping for instead? Why do you think trial is a better option?

Your client’s answers to these questions will help them focus on the issues  and their answers may changer your perspective.

🔹 Reframe the Benefits – As lawyers, we tend to focus on legal strategy. Our clients are more concerned about how the settlement affects their life or business. Some clients are looking for a “win”. Others focus more on risk and reward or justice.

🔹 Discuss Alternatives Honestly – Clients need to know the risks, costs, and time commitment of continued litigation. Outline the best-case scenario, and also the worst-case. Don’t hesitate to have a pre-mediation conversation with your mediator. Sometimes newer lawyers struggle to give their client bad news about risks and costs of continued litigation. The mediator may be able to help deliver bad news to your client without jeopardizing your client relationship.

🔹 The Client is (Almost) Always Right – The ultimate decision belongs to the client. As long as they are making an informed choice, respect their right to move forward or walk away—even if it conflicts with your opinion. Legally competent clients have the absolute right to be more or less risk averse than their lawyer. If you can’t take their case to trial in good conscience, then tell them that so they can factor that into their decision. If your client wants to settle a case for what you believe is an unreasonably high or low amount, make sure they are fully informed, and then respect their decision. One of the best ways to protect your client from making a bad decision at mediation is to fully prepare them for the process ahead of time.

🔹 Put Advice in Writing – If your client is struggling to make a decision at mediation and the mediation ends or is put on hold, summarize your thoughts in writing. This gives your client time to reflect without pressure.
Mediation is about more than just reaching an agreement—it’s about helping clients make good decisions.

The Case for Systematic Case Evaluation Before Mediation

info on January 13, 2025

The Case for Systematic Case Evaluation Before Mediation

Seasoned trial lawyers often lean on instinct when assessing case value—but even the sharpest instincts can miss the nuances that make or break a case.

That’s why a systematic approach to case evaluation is invaluable. It helps you dig deeper, ensuring that every critical detail—both risks and opportunities—is factored into your strategy.

Here’s a simple but effective framework to guide your analysis:

  • Legal Strengths and Weaknesses: How solid is your legal position? Are there uncertainties or vulnerabilities in the claim or defense? Are dispositive motions a factor
  • Witness Impact: Are your witnesses credible, engaging, and persuasive? Could they strengthen or weaken the narrative in a jury’s eyes? Do any of your key witnesses have “warts” such as an abrasive personality, lack of confidence, or poor communication skills?
  • Narrative Resonance: Does your story align with jurors’ common sense and values? A relatable narrative often sways deliberations.
  • Jury Pool Characteristics: How might the local jury pool’s demographics, values, or experiences affect your case? How will your client or your client’s case resonate with the local jury pool?
  • Litigation Costs: Do the financial, time, and emotional costs of going to trial align with the potential reward? Do the costs, time commitment, and stress of trial align with your client’s needs and desires
  • Judicial Influence: What do you know about the judge’s tendencies, track record, or rulings in similar cases?

As a mediator, I see firsthand how lawyers who are systematic in their case evaluation gain an edge in negotiations. Systematic case evaluation uncovers blind spots and provides a foundation for more productive negotiation. I’m not suggesting that lawyers ignore the instincts they have honed through years of experience. Instead, I’m suggesting that lawyers view their case systematically first, and then apply their instincts to the full picture of their case.

It’s similar to projecting the winner of a football game. It’s not enough to know which team is “better.” We also need to know who is injured, who is playing, what the weather will be like, and who will have home field advantage. Similarly, its critical to consider the factors I’ve identified above (and others) when evaluating your case.

How do you approach case valuation? Have you developed a system, or do you rely primarily on experience and instinct? Share your thoughts—I’d love to hear your insights.

Compounding Risks in Case Evaluation: A Mediator’s Perspective

info on January 13, 2025

Compounding Risks in Case Evaluation: A Mediator’s Perspective

When evaluating a case, it’s easy to identify risks individually—but the real challenge lies in understanding how those risks compound.

Too often, negotiators focus on isolated risks—the likelihood of losing a motion or an issue at trial—without considering how those risks interact. This can lead to inaccurate settlement expectations. The result? Missed opportunities for resolution.

Consider this scenario:

  • The case involves multiple legal issues, each carrying unique risks. One of those risks is whether the court will allow a claim for punitive damages.
  • There’s uncertainty about whether the trial court will grant summary judgment.
  • Damages could fall within a fairly broad range.

If you evaluate these risks separately, you might underestimate the likelihood of unfavorable outcomes stacking up. Conversely, an overreliance on a “big win” scenario can inflate expectations, complicating resolution efforts.

Let’s look at an example Assume:

  • Summary Judgment Risk: There’s a 60% chance the court will deny summary judgment.
  • Punitive Damages: There is only a 20% the court will permit a claim for punitive damages.
  • Trial Outcomes: There is a 30% chance that a jury would award $1,000,000 in compensatory damages and $1,000,000 in punitive damages.

What are the odds of a $2,000,000 verdict? You have to compound the risks. There is only a 60% chance that the case makes it to trial. There is only a 20% chance that the court allows a punitive damages claim. That means there is only an 18% chance of a verdict of $1,000,000 in compensatory damages. There is only a 5.4% chance of recovering $1 million in punitive damages.

However, once the court rules on the summary judgment issue, the case value shifts dramatically. The risks also shift depending on the punitive damages ruling. As you prepare for a mediation, you should ask yourself:

  • How would partial losses on legal issues affect the case’s value?
  • What’s the cumulative impact of a procedural setback, like summary judgment, combined with trial risk?
  • If I wait to mediate until one or more of the issues are resolved, will it be easier or harder to settle the case?

As a mediator, I frequently guide attorneys through this process, helping them see the bigger picture. By addressing compounding risks, you gain a clearer understanding of the settlement value—and a stronger position for negotiation.

Takeaways for Attorneys

To better navigate compounding risks in case evaluations, consider these practical tips:

  1. Use Decision Trees: Visual tools can help map out risk scenarios and clarify how probabilities interact.
  2. Discuss Cascading Effects Early: Collaborate with your mediator to explore how procedural rulings might shift negotiation dynamics.

How do you evaluate compounding risks in your cases? Share your approach or questions below—I’d love to hear your thoughts!

The Power of Early Dispute Resolution: A Case Study in Efficiency

info on January 2, 2025

The Power of Early Dispute Resolution: A Case Study in Efficiency

Recently, I mediated a products liability case that highlighted the benefits of early dispute resolution. What made this case unique? No discovery had been conducted. None.

At first glance, that might sound like a huge roadblock to settlement. Yet, the attorneys on both sides were exceptionally prepared. They understood the case, they had evaluated risks, and they were ready for candid discussions.

The result? In just half a day, the parties reached an agreement—saving tens of thousands of dollars in legal fees and avoiding the emotional stress of a prolonged court battle.

This case shows how careful preparation by skilled trial lawyers can lead to early resolution—even before the first interrogatory is answered or the first deposition is taken. Early mediation delivers value, not just in cost savings, but by empowering clients to control their outcomes and bypass the uncertainty of litigation. The litigation process is frustrating and time consuming for clients. Early mediation can help minimize that frustration.

Early mediation isn’t the answer in every case. Sometimes discovery is necessary before you can realistically value the case. But, in the right case, early mediation can be extremely effective. It might just be the most efficient and effective decision you make.

Have you tried early mediation? Share your experiences both good and bad—I’d love to hear them.

#Mediation #EarlyResolution #TrialLawyers #LitigationEfficiency #DisputeResolution

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