Mediation Day: Why Do Mediators Talk About the Facts When It’s All In the Brief?
I used to hate when mediators asked about the facts of my case. I submitted a detailed brief: a timeline, bullet points, key exhibits, meaningful citations. All of it. Rehashing it felt like a waste of everyone’s time.
Sitting in the mediator’s chair, I now know the opening discussion isn’t about rehashing, it never was. During what I previously called the Deep Dive, I’m working towards four goals:
1. Establish trust and understanding,
2. Clarify the factual narrative,
3. Surface and socialize uncertainty, and
4. Frame BATNA and the true purpose of trial.
Building Trust, Without the Therapy Speak
“I hear you, and I see you, (and I’m breathing).”
The great Craig T. Nelson’s Zeek Braveman in Parenthood learned this line in couples counseling. He repeats it, over and over. He’s been told it signals empathy. He’s earnest and wants to save his marriage. But he doesn’t want to do the work, he doesn’t actually want to listen, and he’s not ready to truly engage.
I try to avoid that trap. After my introductory set piece, the day belongs to the parties. The goal is authentic engagement, not performative empathy. I’m not there to confirm what’s already in the brief. I want to know what actually matters to each party.
But yes, I ask questions that I think I know the answers to. I let the parties repeat what their attorneys have already written. That drove me nuts as a litigator. Now I understand it. Sometimes people need to say the thing out loud – to a neutral, listening and engaged, third party – before they are ready to move past it. That’s not wasted time. That’s the work.
Other times, especially in PAGA actions, class cases, or disputes where the issue is what the law is rather than how established law applies to disputed facts, the better approach is to show I’ve read the briefs and I’m fully prepared. I’ll give my 50,000-foot read of the case, summarize my understanding of the legal theories, and ask what I missed. As a litigator, this is what I wanted: evidence that the mediator read the briefs and understood the legal landscape.
In all cases, I’ll emphasize that I haven’t lived the case. The parties and their attorneys have; they’re the experts. I’m there to listen, ask questions, and try to understand. I’m curious; not judgmental. That posture allows the parties to feel safe saying what they need to as we explore resolution.
Clarify The Narrative, and Start to Push Back
I come prepared with questions, some of which I may share in advance if they’re technical. The gaps or questions left open by the briefs are the roadmap for this part of the conversation.
Watching someone tell their story is as important as the story itself. I’m listening for what feels like truly held beliefs versus a story they’re still trying to sell themselves. I know I can’t divine truth from fiction, but in a courtroom, what is being said is often secondary to how it’s being said. I’m taking notes on both.
I’m disciplined about not rewriting, reframing, or arguing a party’s position. That’s not my role. I’m there to hear the party’s story and their case, how they intend to present it.
But this is also where I start, gently, to push back. Not to contradict, but to help recognize that the competing narrative in the other room exists, and it will be heard and considered. That tension is the bridge to the next part of our conversation, acknowledging the uncertainty in every case.
Coming Up Next: the final two goals of the factual discussion: socializing uncertainty including observing how parties deal with uncertainty, and defining what happens if the matter does not resolve and true purpose of trial.
Until then,
Monday x Morello Mediation.
None of this is legal advice. Your mileage may vary.