Mediation Day: The Morning Plan
Every mediator runs their day a little differently. For single plaintiff cases, I generally structure my days into five phases:
1. The Foundation: Intro, Admonitions, Roadmap, and Buy-in
2. The Deep Dive: Factual Discussions
3. The Pivot: Transition to Valuations
4. The Grind: Negotiations
5. The Finale: Closure
These steps rarely are linear. We’ll revisit steps, jump ahead and back again. Depending on the room’s comfort with mediation, each step expands or contracts, but we’ll hit all five phases.
For class cases I follow a similar plan, but the factual discussion is more technical. Provided I’m given briefs with enough lead time, I’ll send questions before the mediation. The goal: clear the factual ambiguities so we can get into damages models.
The Foundation: Intro, Admonitions, Roadmap, And Buy-In
We start by setting the groundwork, introducing ourselves, setting expectations, and securing a commitment to the process.
Grounding in the Present: Introductions
I handle attorney intros during pre-mediation calls so I can focus on the plaintiff and to the business rep or in-house counsel on mediation day. I let them know I have represented people just like them in cases just like this. For in-house counsel, I want them to know I’ve sat in their position, balancing between legal risk, business realities, and the desire to defend the company.
I also ask the parties about themselves. This isn’t small talk. By talking about who they are now, we ground the mediation in the present. Litigation is backward-looking; grounding the mediation in the present is the first step to focusing on the future. There’s almost always a detail that emerges in these early minutes that I can use to refocus discussions when things get tense at 4:00 p.m.
Admonitions
In California, mediators are effectively mandated to review confidentiality rules. That means reviewing Cal. Evid. Code § 1129, ADR-200, CRC 3.854. I treat this like a pre-flight safety briefing, it feels like a chore but it is necessary.
I recite these maxims:
All communications, negotiations, or settlement offers are confidential.
Writings prepared for mediation are not admissible in non-criminal proceedings.
The mediator cannot be a witness.
California law is more relaxed in class cases, we can truncate these admonitions, assuming experienced counsel knows the drill.
Next, I add an admonition regarding representation and decision making. ABA Opinion 518 and state courts strongly encourage it. It takes a minute and solves problems before they start.
I use this admonition, that mediators do not represent either party, do not give legal advice, and cannot make decisions regarding the case, to build trust. I tell the client or business rep: “if you ever want me out of the room to talk to your attorney privately, just kick me out, I won’t take offense.”
This is when I make my motivation clear: I’m here to advocate for resolution and to ensure you have the information you need to decide if resolution is in your best interest.
Roadmap
I believe in process. The day will bring enough surprises; the mechanics of the room shouldn't be one of them.
Outlining the roadmap reinforces the agenda agreed to in pre-mediation calls. It shows counsel I’m not here to spring surprises and shows clients that their attorneys are prepared and I am a steady hand. I want to lower the emotional temperature by making the process predictable and transparent.
Buy-in
I promise transparency. I ask for open engagement.
I let the parties know I’m going to ask difficult questions. I ask them to view these not as attacks, but as stress tests designed to inform.
I don’t use a set script, but I ask the parties to “buy-in” to these ideas:
1. Stay Open. At times I will ask parties not to answer my questions. I’m often asking simply to allow you to take a beat and consider, not react. I ask the parties to stay open to my questions and new ideas. In an era of performative certainty, I want to create a space where changing your mind is a sign of intelligence, not weakness.
2. Be Precise. I want to know when and how I’m wrong. But there’s a difference between a factual error and a legal or factual dispute. I ask the parties to be precise about what we know today and what remains to be decided by a judge or jury. This helps the parties acknowledge risks and confront their reality.
3. Trust the Process. Things will get heated. You may feel insulted by an opening anchor. Don’t walk away. Keep staying open, keep being precise, keep staying engaged.
I never ask for “honesty”, honesty is earned and even then, attorneys are going to do what they think is most effective for their clients. But through repeated mediations, I try to build trust with counsel so they know my only agenda is to help achieve a resolution that will contain the past and makes your client grateful they hired you.
Next week: We dive into the Factual Discussion; the part where we determine if the "past" can actually be contained.
Until then,
Monday x Morello Mediation.
None of this is legal advice. Your mileage may vary.