Helping Your Clients Navigate Settlement Decisions in Mediation

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

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

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

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

Getting in the Reps

Getting in the Reps

Younger lawyers – are you getting in the reps?

This morning as I was working out, the trainer kept pushing the class. “Finish your reps.” “[Muscle] failure is where the growth begins.”

It’s not much different in the legal practice. No matter how many books we read, no matter how many CLE’s we attend, no matter how much mentoring we receive, we still have to get in the reps if we want to become better trial lawyers.

More depositions.

More hearings.

More writing.

And, of course, more time in trial.

The first time we do something, we may feel like we’re on the brink of failure. And, if we’re being honest, some of our early efforts aren’t great. 

Each rep, whether it’s motion practice, hearings, depositions or trial, will increase our ability and our comfort level with what we are doing. 

There are high stakes in the practice of law. Sometimes it’s uncomfortable. But nothing is more important than putting in the work, getting reps, and learning from our mistakes. There is no substitute for getting in the reps.

Oh, and that’s not me in the picture . . . 

#Trial #Triallawyers #MSBLaw 

Equipping Your Client For Success in Mediation, Part 2

Equipping Your Client For
Success in Mediation, Part 2

Have you ever been in a mediation where you believed the case could be settled on terms that would be in your client’s best interest, but your client had a mindset that made settlement impossible? When I use the term mindset, my intention is to include your client’s emotions, biases, preconceived notions, or mental preparation (or lack thereof) for mediation. My next few posts will focus on how you can help your client mentally prepare for mediation.

If you have been in a litigation practice for at least a few years, you know what to expect in mediation. You aren’t shocked when the other side’s initial proposal is lackluster. You aren’t surprised that the other side views the facts differently. You aren’t alarmed when the mediation hits an impasse. You expect the mediator to challenge your position. These normal mediation experiences can drive your client to anxiety, anger, or despair. You can help your client mentally prepare for the normal frustrations of mediation by taking a few simple steps.

Step 1: Encourage your client to presume the other participants in the mediation are acting with positive intent

What do I mean by “presume positive intent”?

I don’t mean that the other side is looking out for your client’s best interest. Clearly, they’re not.

What I mean is that most parties simply want a rational and reasonable settlement. They don’t know how to get there. As a result, they make low offers or high demands so they can leave room for more negotiation. Both parties are dealing with uncertainty, and they often fear giving up too much too early. The fog of uncertainty will slowly clear if the client sticks with the mediation process. The gap will begin to narrow. A lackluster offer or demand does not mean the other party is intending to be insulting or disrespectful.

Until the mediator tells you otherwise, it makes sense to assume the other party is working towards settlement. When in doubt, ask the mediator if he or she thinks the other party is serious about working towards settlement.

Step 2: Help Your Client Understand that Mediation Can Be Emotionally Draining

Early in the mediation process, both sides often feel a sense of disappointment. It can help to share some stories with your client (sanitized for confidentiality of course) about other mediations that started slow, or hit impasse, and then concluded with a good settlement.

Explain that there will be times when it feels like nothing is happening, but that the mediator is working hard in the other room.

Clients have seen plenty of courtroom dramas on TV or in the movies. I doubt they’ve seen a movie depiction of a mediation. Clients who have never been in a mediation probably don’t have any analogous life experiences to prepare them for the process. The process can be slow, frustrating, and draining, but it works. When clients know what to expect, they have a better ability to let the process work.

Step 3: Encourage your client to avoid anger and focus on achieving a rational and reasonable settlement

It’s normal for litigants to be angry with the other party. Clients need to minimize their anger at mediation. Anger is contagious. Anger clouds judgment. When a client knows what to expect in the mediation, they are better equipped to handle their anger related to the process or relating to the facts of the lawsuit. Encourage your client to focus on the end goal of settlement, not on the frustrations that occur during mediation. Mediation may be stressful at times, but that stress will be much worse for your client at trial.

In part 3, I’ll discuss additional mental preparation for your clients that will help pave the way to mediation success.

Unlocking the Power of Choice Through Mediation

Unlocking the Power of Choice Through Mediation

The Power of Choice

At the heart of mediation is the power of choice. Unlike a trial, which places decision-making in the hands of a jury or judge, mediation empowers the litigants to choose how the dispute will end. The mediation process recognizes that each party has not only the right but also the capacity to make informed decisions about their lives and conflicts. Through mediation, the parties and their attorneys can choose options that may not be available in court. It can be helpful for lawyers to explain to their clients the power of choice that mediation gives them.

How we perceive a difficult situation can vary greatly depending on whether we have chosen the situation or whether the situation has been forced upon us. Vigorous physical activity is a perfect example. If we choose to run in a marathon, training by running long distances may appear to be an exciting challenge and an opportunity to increase fitness. If we are forced to run long distances every day, we may feel stress, helplessness, anxiety and even despair. The difference is choice.

The same thing is often true for our clients. They probably didn’t choose the situation that led to litigation. The only choice they may have made is to hire a lawyer to file or defend a lawsuit. Once the litigation starts, they often feel like they are trapped and have lost control. They have a sense of powerlessness and helplessness.

Mediation gives clients the power to choose their future in a setting where they have a trusted advisor and where they can thoughtfully consider the pros and cons of their options. One of those options continues to be trial, and in some cases that is the best option. Regardless of whether they choose to settle their case or choose to go to trial, clients are more likely to be satisfied with the outcome when they made a choice.

Escaping the Cycle of Anger and Unforgiveness

One of the less discussed, yet profoundly transformative, aspects of mediation is its capacity to help individuals move beyond anger and unforgiveness. Conflicts, especially prolonged ones, can trap us in a state of emotional turmoil, where anger and resentment overshadow everything else. There’s an old saying that unforgiveness is the poison we drink hoping it will kill the other person. Usually, it is the person filled with unforgiveness or bitterness who suffers from the poison.

The power of choice clients experience in mediation helps them let go of the burdens they have been carrying. Sometimes this process can lead to surprising moments of empathy and connection, allowing individuals to see beyond their anger, recognize the humanity in the other, and open the door to genuine forgiveness and healing. More often, it just allows the parties to let go of their grievance when they exercise personal agency and choose to end their dispute.  Even when cases don’t settle at mediation, the client benefits from knowing that they made a well-considered choice to go to trial.

Why This Matters

Mediation is not just about finding a resolution to a current dispute; it’s about changing how the parties relate to the conflict itself. The parties are no longer powerless litigants; they become decision makers. Decision makers are more likely to be satisfied with the outcome and with the lawyers that assisted them in getting there.

The Art of Give and Take

The Art of Give and Take​

One of the most powerful principles influencing human behavior is the rule of reciprocity. If someone does something for you, you feel an obligation to do something in return. Society looks down on those who don’t reciprocate. Reciprocity is a powerful force that the litigants should harness in mediation.

In his book, “Influence”, Robert Cialdini shares his insight on reciprocity and other “levers” of influence. Cialdini explains that stores give free food samples because many customers will feel obligated to buy the product. Charities send free address labels to prospective donors knowing that this dramatically increases donations. The rule of reciprocity shapes human behavior, particularly in the context of mediation.

Early in a mediation, it’s common to hear parties criticize the other’s proposals as unrealistic. Frequently, that criticism is fair. When the parties apply the rule of reciprocity, they can influence each other to make more satisfying proposals. When one party makes a financial or other concession, it influences the opponent to reciprocate

While the rule of reciprocity seems obvious, don’t underestimate its power. Parties who want to achieve a settlement should come to mediation expecting to engage in a certain amount of back and forth. If one party makes a concession and the other party refuses to budge, it will be more difficult to resolve the case, no matter how reasonable the second party’s initial position was. If each party is prepared to make some concessions, the mediation will be productive. I am not suggesting parties take a settle at all costs approach or make unwise concessions. Instead, I contend that litigants should plan their mediation strategy to include thoughtfully timed concessions that are consistent with their overall goals. In most cases, this will lead to reciprocal concessions.

Applying the rule of reciprocity in mediation is not dishonest manipulation. All parties benefit by understanding basic human nature. Parties are better prepared to negotiate when they understand that each party must feel like they received something of value for settlement to happen. The rule of reciprocity is one of the reasons parties don’t like to bid against themselves. It feels offensive to make additional concessions when the other party has not reciprocated. Parties should strategically consider what concessions may motivate the other side and when to make them.

One tool mediators use that encourages reciprocation is the bracket. When the mediator suggests a bracket, the bracket usually requires both sides to make a meaningful move or concession. This can jump start the negotiation after impasse.

Not every case can be settled. But, by applying the rule of reciprocity, the plaintiff can find out how much the defendant will pay short of trial. And, the defendant can find out how little the plaintiff will take short of trial. Then each party can make an educated decision about whether settlement or trial is the best option. Reciprocity is one of the keys for the parties to get the information they need in mediation.

The Mediator’s Dilemma: Will a Mediator’s Number Help or Hurt?

The Mediator’s Dilemma:
Will a Mediator’s Number Help or Hurt?

My first exposure to a mediator’s number was about 25 years ago. I was representing a party in a will dispute. The mediator was a retired judge who told us he didn’t need to hear opening statements. The mediator met with the other party first. Not more than 5 minutes later, he walked into our caucus room and declared, “I told those guys in the other room that both parties are just going to have to split things down the middle.” Our mediator didn’t call it a mediator’s number, but that’s what it was. Although we eventually settled the case, both parties and both lawyers were upset and disappointed with the mediator and the entire process. Our retired judge short-circuited the process and forgot to be a mediator.

That bad experience taught me some valuable lessons about best practices when proposing a mediator’s number. The mediator’s number is a valuable tool, but only when it is used at the right time and with the consent of all the parties. When used properly, the mediator’s number can help bring the parties to the finish line.

A key principle of mediation is self-determination of the parties. The mediator’s goal should be to help the parties reach a voluntary, mutually agreeable settlement – not to strong-arm the parties into settlement. The decision to propose a “mediator’s number” to the parties is a nuanced one. The mediator must consider the timing, the parties’ receptiveness, and the overall dynamics of the mediation process. There are several factors the mediator should consider before proposing a mediator’s number:

1. Timing: The best time for the mediator to propose a number is after all parties have fully expressed their interests, concerns, and positions and they have absorbed information about the other party’s perspective. It’s important for the mediator to learn more about the parties, their interests, and their positions than what might be apparent from the mediation position papers or the opening statements.

2. Readiness of Parties: The parties must be ready to hear and consider compromise solutions. This readiness often comes after the parties have recognized the strengths and weaknesses of their own and the other party’s positions, the potential risks of not settling, and the benefits of resolving the dispute. This usually occurs after several rounds of offers and demands.

3. Stalemate or Impasse: A mediator’s number can be particularly useful when negotiations have reached an impasse, and the parties seem unable to move closer on their own. A proposal from the mediator can help to break the impasse.

4. When Asked by the Parties: Sometimes, parties or their attorneys request the mediator’s input on what they consider a fair or reasonable resolution. This direct request can be an ideal time for the mediator to propose a number, as it shows that the parties are open to third-party suggestions.

5. Avoiding Premature Suggestions: Proposing a number too early in the process can be risky, even if it was requested by one of the parties. A premature mediator’s number may anchor negotiations at an unrealistic level and the proposal will not have the benefit of full development of the facts, the law, and the parties’ positions and interests.

Mediators must use their judgment, experience, and the specific context of the mediation to decide when and if to propose a mediator’s number. Careless use of the mediator’s number can doom a mediation to failure, but skilled use can settle the case.

Patience and Mediation

Patience and Mediation

“The two most powerful warriors are patience and time.”-Leo Tolstoy

“All we need is just a little patience.”-Guns N’ Roses

Patienceis one of the virtues most closely connected with success in mediation.

Patienceto listen to the other side’s position.

Patienceto endure unreasonable early moves by the other party without walking out.

Patienceto learn as much as you can about the other side’s position.

Patienceto let the process unfold under the guidance of a good mediator.

Patienceto find out what the other side will do short of trial.

Patienceto guide your client through a process that can be frustrating at times.

Patience to work through a hard day of mediation so your client can avoid days or weeks of trial.

Patience to figure out whether a settlement is within reach, or whether it’s time to call it a day.