Pre-Mediation Call – Setting the Table
As a litigator, I found pre-mediation calls productive. As a mediator, I find them essential. If we haven’t worked together, this is often our first conversation. If we have, it’s likely our first time discussing this case. These calls are my first opportunity to get the parties to start thinking “slowly.”
My goal: turn the mediation day into a space for reasoned decisions, not reactive ones. Low stress. Reduced cognitive load. Few distractions, minimal unproductive fatigue, a safe place to think. Pre-mediation calls signal that the mediation day, which always provides twists and turns, will be handled with a steady hand.
I steal heavily from behavioral economists Daniel Kahneman and Richard Thaler. If you want more theory behind these ideas, at minimum, add Nudge and Thinking, Fast and Slow to your reading list.
Set Expectations, Reduce Uncertainty
After introductions, I outline how I run mediations, obtain feedback, get buy-in. If we haven’t discussed joint sessions, I won’t surprise you with one on mediation day. If you’ve submitted an in-depth brief, I won’t ask for opening statements.
For example, I rarely start with joint sessions. I typically begin with plaintiffs. For defendants, we may set your start time later or establish you’ll have thirty minutes to yourself at the beginning of the day. For plaintiffs, you’ll know we’ll be talking first thing.
If we deviate, we’ll discuss it first. No surprises to start the day. You'll understand my process, what matters to me, what you can expect from me. That’s part of why I’m publishing this series.
If anything feels off or you prefer a different approach, we’ll discuss it.
Understanding the framework for the day will allow you to set expectations with your client. And when the day unfolds as you described, client stress drops and reasoned decision-making improves.
Address Technical / Logistical Hurdles
After setting process expectations, we’ll address logistical or technical issues. Anyone on Zoom needs a quiet, distraction-free space with reliable internet, good screen, and quality audio. Travel concerns, location, parking, security passes, we’ll discuss those. The mundane details get handled here so they don’t drain cognitive bandwidth later. As much as possible, we remove friction before the day begins.
Obtain Pre-commitments
I’ll also ask for commitments:
A commitment to the agreed-upon structure.
Acknowledgment that emotions will run high at times—and that this is normal.
A commitment to stay at the table and keep working even when things get tense.
A commitment that all necessary decision-makers will be present, not just available.
Pre-commitments matter because they help build our process that we can rely on when the inevitable moment of frustration arrives.
Framing and Questions for the Day
If I have your brief, I’ll ask some questions I don’t expect you to answer immediately, but that we’ll discuss on mediation day.
We’ll also discuss what’s not in your brief. I’ll run through issues I suggested you review with your client:
Cash flow concerns.
Quarter-end concerns.
Accounting issues.
Incentive plans affected by resolution.
Flat-fee agreements and payment tranches triggered if the matter doesn’t resolve.
Other cases that may affect mediation scheduling and attention.
Internal political issues affected by your case.
Where this case fits in your client’s broader life.
Non-legal realities might drive (or derail) settlement.
We’ll discuss interactions with opposing counsel. Have you litigated with them before? How is your working relationship? Have you had any interaction with them before the mediation?
Depending on how our conversation flows, you may have homework:
Think through a “pre-mortem” and a lost trial.
Think through your best alternative to negotiated agreement (I promise, I’ll try not to say “BATNA”).
Three questions for the other side that might change your perspective.
I won’t put you on the spot or ask for immediate answers. These are topics I’ll ask you to think through with your client and to be prepared to discuss on mediation day.
Why the Pre-Mediation Call Matters
The pre-mediation call is the first step in building rapport. We’ll agree to a structure and framework we can fall back on when the mediation day inevitably throws us surprises. It is the first step in trust building and the creation of a space where your client can make reasoned decisions.
Next week, we’ll talk locations.
Until then,
Monday x Morello Mediation.
None of this is legal advice. Your mileage may vary.
The Brief Part 2: Know Your Audience (But Don’t Forget Your Mediator)
Know your audience when writing mediation briefs. And know you’re rarely writing for an audience of one. Sometimes you write for your client, opposing counsel, the opposing party, or just yourself. The mediator is probably the least important on your stakeholder list. Include core elements, and your brief will work for us.
Writing for Your Client
Ours is a client service business. Law school may have promised that you’d become master of the legal universe. But soon after graduation reality hits: your job ishelping clients. Legal expertise is table stakes.
The best lawyers resemble hospitality professionals more than surgeons. We can’t cover our clients’ faces when we work.
Mediation briefs are part of that hospitality experience. Sometimes clients need a “zealous” brief. Full of vim and vigor, with full throated, red blooded, attacks on the other side. Don’t share these across the table. But sometimes you must write them.
Special considerations may arise if you’re dealing directly with business units, working through finance or the CFO. Tailor briefs to show you understand business operations, not just legal issues.
And sometimes your client needs you to write for a client’s particular family member.
If your client reviews the brief, they are your most important audience. Briefs show you understand your client, their needs, and that you prioritize their interests above all.
Writing for Yourself
Sometimes you just need vent. Discovery’s unfair. The other side delays, takes untenable positions. Confidential mediation briefs are a fine place to vent. Especially if writing it down and sending it off to someone who will listen improves your headspace at the mediation. You hired the mediator. If you need them to hear you out, more power to you.
Use mediation briefs strategically within litigation lifecycles. Safe your future self time. Write them as draft legal motions. If you’ve got a MSJ or class cert on the horizon, test arguments with your mediator. If mediation fails, you've got a motion draft ready.
Writing for the Other Side
Write this brief to be shared. Sometimes you want to communicate specific facts, legal arguments, settlement offers, or documents directly. Or explain why your case has that “hook” that busts the policy or turns a dry wage and hour matter into a compelling story. The mediation brief is a perfect vehicle to do so.
But if you’re writing to share, then think about effective communication. Cut adjectives. State facts plainly. Resist accusations. Don’t do more harm than good. Your message must be read and understood.
If your style leans zealous, then work with your mediator to ensure your message gets heard, not reacted to. This isn’t all or nothing. Submit one brief to the other side, another confidentially to your mediator.
Class Cases: see my prior post. At a minimum, exchange damages models pre-mediation.
Writing for The Mediator
We’re your least important audience. We understand you have more important stakeholders. You hired us to sift through whatever you provide, in whatever form, and to be prepared on mediation day. But whatever the tone, whoever you are writing for, we’ll appreciate if you include:
· List of key players with titles and one sentence explanation why they matter
· Well-constructed timeline
· Summary of claims or the operative complaint
· Damages analysis with supporting documents
· Summary of prior resolution discussions and challenges to resolution
· Procedural posture
· Key documents with short statements of significance
· Legal analysis, especially for novel issues
Legal analysis comes last for a reason. Experienced mediators understand legal issues from players, timelines, and documents alone. If there is a key case you want us to read or if you’re thinking of advancing a novel legal theory, then flag it early. Otherwise, unless you’re drafting the mediation brief like a future motion, spend time telling the story, not providing Rutter summaries.
Mediation scheduled. LLM prompted. Brief drafted. You're ready for your pre-mediation call. Next week: how to make that call count.
Until then,
Monday x Morello Mediation.
None of this is legal advice. Your mileage may vary.
The Mediation Brief (Pt. 1)
Most mediators request a mediation brief or statement. The names change, the concept doesn’t. Mediators want something to read that explains your position.
When You Don’t Need A Brief
Formal briefs aren’t always necessary. You’re paying for the mediation. If you don’t want to brief, don’t. Some situations where briefs may not be warranted:
Cost
Some clients don’t want to pay for briefs, let alone the mediation. Alert your mediator. A short email outlining key claims or defenses, a timeline, and relevant exhibits attached, could be enough. Then hop on a call and talk through your case. Or maybe just a call works. The last thing mediators want: clients angrier than necessary at mediation. If that means extra time reviewing exhibits or creating our own timelines, so be it.
Time
Sometimes mediations are scheduled on short notice and it’s more efficient to send over existing documents. If your mediation brief would just rehash your winning MSJ opposition, just send motion and the order. If the mediation is scheduled on the eve of an MSJ, and your brief won’t add new information, just send over the briefing. Don’t reinvent the wheel. If the work’s already done, use it. Save yourself the time, save your client some money.
A Class Case Detour
For class practitioners: this is remedial. For dabblers: class mediations are different. Plaintiffs bring spreadsheets and less emotion. Defendants often bring the emotion. Neither side can roll in with a blank page. Both need damages models, preferably exchanged pre-mediation.
For Plaintiffs
Submit full briefs with a detailed damages theory and exposure analysis. Damages issues can’t defeat class cert, but showing how your case can be tried and won, class wide, will move the needle. Don’t want to share trial strategy? Submit the brief confidentially and work with your mediator to protect your trial strategy while disclosing the class-wide trial framework. At the very least, describing your end game on paper will help clarify issues on class certification, summary judgment, and eventually trial.
The damages analysis is essential. Show you have sufficient information (or where you’ll need more), evaluate fairly, then use that analysis to anchor merit-based discounts. You’ll have to present that same analysis to the court when seeking preliminary approval, so have your analysis and justification for any discount ready at mediation.
For Defendants
Only extremely rare situations don’t require briefs. Resist submitting 80 page tomes with indexes and TOCs that cite every district court. Keep it tight. If you can’t explain why plaintiffs don’t have a certifiable class in a pithy paragraph, you might have class-wide problems.
Work backwards. Start with why the case can’t be practically tried, then address formal class cert standards. In pre-cert mediations, draft with judges’ practical trial reality in mind. It will focus your class certification opposition if the mediation fails.
Class Mediations Are Different
More transparency. More math. More depth. Often treated as early trials. Briefs contain more legal argument and XLS attachments. Attorneys are more likely to caucus together. Keep these differences when drafting. Make your mediation brief something that you can use during the session itself.
Not Every Brief Should Be Shared
I can’t remember my last joint session in a single-plaintiff employment case. They’ve fallen out of favor because attorneys talk past each other, make “zealous” performances for clients, and the everyone walks away more entrenched than before.
Yet almost every employment mediator suggests sharing briefs. ResolveLA requires it. But if joint sessions are unproductive, then why exchange briefs that read like joint session speeches?
Before sharing, ask yourself: Do you like joint sessions? If not, talk with your mediator about whether to share.
Instead, consider sharing:
· A neutral timeline
· Key documents with a short (three sentences) statement why they matter
· Key cases with pin cites (no summaries needed)
· Three questions you’d like the other side to answer
And you don’t need to send these directly. Use your mediator. That’s part of what you’re paying for. Your mediator should present your points in a way the other side will actually hear and understand. That’s why you hired a mediator: to communicate effectively, to show empathy. So you don’t have to.
As we’ll discuss next week, the practical reality is you aren’t always writing your brief to help the other side understand. You’ve got other stakeholders to satisfy.
Until then,
Monday x Morello Mediation.
None of this is legal advice. Your mileage may vary.
AI Part 2: Using LLMs Before the Mediation
AI Part 2: Using LLMs Before the Mediation
LLMs are prediction engines. Our job is to design prompts that elicit useful predictions. If you don’t like what the engine has predicted in response to a prompt, that’s your fault, not the engine’s.
Effective prompting requires tinkering. Or more formally, “iterations.” Output disappointing? Identify what’s lacking, adjust your prompt, try again. Different models produce different results from identical prompts—though they're converging, each has its own flavor. Test the major models (Gemini, Claude, ChatGPT) and find which matches your needs.
The Key: To most effectively use LLMs, you must understand the output you want. I’ve found them most effective as a thinking partner, not a content creator.
My Impressions
Claude delivers strong edits but weak summaries. ChatGPT leaves fingerprints (would you like another emdash?, odd AI feeling folksiness), and displays edits inconsistently, but overall handles editing decently. It has also been the best for random brainstorms. I’ve found ChatGPT more useful for random consumer uses than editing. Gemini summarizes aggressively but can miss the plot. I haven’t yet found the right prompt to make it a good editor.
For each, detailed prompts produce better output, to a point. It’s a balance. As your prompts grow longer, ambiguity creeps in. And if you give an LLM an ambiguous prompt, you’re going to get an ambiguous result.
LLMs are “tasky”: describe a specific output with the right level of detail, get that output. But slight prompt variations or overly long prompts produce… interesting results.
As writing aids, I’m still deciding if LLMs are a feature or a product. They let me draft loosely and then “fix it in post.” It has made ideas from Gary Kinder’s “Three Steps and Three Rules” easier to apply. But that’s not a revolution, it’s a better spellchecker.
I don’t use LLMs for research. I experimented, got wrong answers or results that weren’t better than my Boolean searches, and haven’t experimented more. LLMs might work as a new type of finding source – provided they give you exact citations and you read the cases. But we’ve all read cases where judges stretch citations beyond holdings. Judges can do that, its their job to move the law forward. LLMs shouldn’t.
Prompting from 10,000 feet
Using consumer interfaces (not APIs), you’re stuck with default settings. I don’t know how to set sampling controls or other settings without API access. Advanced users might.
Using the consumer interface, I’ve found prompts more effective if they follow this general structure:
· Role. Define “who” the LLM is. What is its background? What’s its knowledge base?
· Task. Tell it what to do: edit, summarize, draft, critique, code, etc.
· Context. Provide background relevant to the task.
· Reasoning. Ask for specific reasoning steps if relevant.
· Examples. Show the LLM what a “good” response looks like. Especially useful for specific formats.
· Output. Describe exactly what you want, redline edits, summary paragraph, formatted memo, code language, etc.
· Stop Condition. Tell it when to stop.
This framework came from an OpenAI guide that I can’t seem to find. For deep dives:
· Gemini
· Claude
· OpenAI
Samples
Editing a Legal Brief: Need to cut 500 words? Try:
Act as a legal brief editor, in the style of "Legal Writing in Plain English" by Bryan Garner, and "Making Your Case: The Art of Persuading Judges" by Bryan Garner and Former Supreme Court Justice Antonin Scalia. [If you don’t know or don’t like Garner’s style, DO NOT USE THIS PROMPT – Try Strunk & White, “The Elements of Style” – or your preferred style guide].
Please review and revise the text below for clarity, conciseness, and persuasiveness. Prioritize [what you want to prioritize].
The text is from [MSJ in state court, demurrer, opposition to same, an appellate brief to the Ninth Circuit, etc.] addressing [specific legal topic]. [Provide procedural background and the form of the motion].
Return the results as:
1. A redlined section with all changes marked as tracked changes from the original draft. DO NOT CREATE OR EDIT CITATIONS.
2. Stop when at least 500 words shorter. All edits must be marked in redline. [Remove this condition if you want edits regardless of words cut].
The section to edit is below/attached:
Summarizing: Need a TL;DR for your blog post? I use:
Act as if you were summarizing in the style of [list publications you find compelling/well written] or for Authors like [List authors you think write well/are persuasive].
Review this final blog post. Do not edit. Instead, create a TL;DR version for posting on LinkedIn.
Ensure the TL;DR keeps my voice and authors in mind.
[Provide context. Example: These posts are part of my MondayxMorelloMediation series designed as a marketing content for my Mediation Firm.]
Optimize for clarity, conciseness, and practical value, without losing my voice.
Return the results as:
1. A TL;DR version to post on LinkedIn.
The long form blog post follows below:
With some tinkering or “iteration”, both prompts can be repurposed for memos, reports, briefs, or client updates.
Using LLMs Before the Mediation
With effective prompting in mind, before the mediation:
CONFIDENTIALITY WARNING
Once you hit enter, you no longer own it. Prompts aren't confidential. Fine for public brief sections. Not fine for case-specific details. No names, parties, or identifying information. Keep it generic.
Understand LLMs Valuations. Forget everything you’ve learned and mimic how a client might prompt an LLM. Then use the prompt framework above and have the LLM evaluate your case (remember to have the LLM evaluating playing different roles). Compare results.
Take the results with a grain of salt, but they’ll help you anticipate how your client, or the other side, might view the case.
You'll be prepared to explain: LLMs are prediction engines, not fact machines. Their training data doesn't represent most settlements. You'll have counter-examples ready when discussing LLM results.
Edit Your Briefs (Please). Feed smaller sections of your brief into an LLM for tone and clarity. This limits confidentiality risks and improves precision. Let the model critique a section or paragraph, not the whole draft. And use it for editing, not initial drafting.
Feeling creative? Ask it to act as a neutral and critique your brief from the mediator’s perspective. Take any feedback more as entertainment than insight. But you might find a fresh angle.
General Preparation. Ask the LLM for:
· Five questions the mediator might ask
· Five questions your client might ask
· Translate complex theories into plain English
As in-house counsel, I often translated wage and hour law for business teams. Use the LLM to help you do this translation before the mediation, make in-house counsel’s job easier.
For plaintiffs: generate common-sense talking points so clients feel prepared.
Not Research. If you’re in unfamiliar territory, start with traditional finding sources. Read key cases yourself. Don’t use LLMs to draft legal sections, you want an accurate statement of the law, not a prediction of what you want the law to be.
Not for initial drafting. You’ll sound like an LLM. AI-drafted text has tells. Something feels off. As ChatGPT suggested “There’s a certain uncanny rhythm to AI writing.” And I love a good em dash, but if you use an LLM to write for you, you’ll have more em dashes littered through your draft than you ever thought possible.
Next week: The Mediation Brief.
Until then,
Monday x Morello Mediation.
None of this is legal advice. Your mileage may vary.
P.S. - After posting note - OpenAI has specifically disclaimed any “legal advice” that ChatGPT may provide. Through their Usage Policies posted on October 29, 2025, OpenAI now prohibits “automation of high-stakes decisions in sensitive areas without human review … legal…” It is unclear what this means in practice. As of this post, ChatGPT still claimed it could “dig deeper and search for more nuanced or lesser-known unpublished trial/administrative decisions.” It sounds like the new usage policy is more about avoiding liability than changing functionality.
AI: Your Clients are Using AI, You Need to Understand It
I’m not sure who needs to hear this, but you’re not talking to an LLM. You prompt it; it predicts. Like DOS or Windows command prompts – input a command, receive a response. Always.
The difference: to us, natural language is ambiguous. You can’t create unambiguous prompts; LLMs can’t produce unambiguous responses.
What follows is a simplified explanation of how LLMs work – and why that matters for legal practice.
The Transformer Model
Current LLMs like ChatGPT use transformer models. This model works by transforming your ambiguous natural language prompt into definite tokens. Think of tokens as 1s and 0s representing small chunks of your prompt. Those chunks may be full words, word parts, or character combinations. The tokens aren’t ambiguous, and a response must be given.
We can skip the deep math – vectors, attention blocks, multi-layer perception blocks, feedback loops, additional layers. What matters: LLMs take your prompt, transform it into definite tokens, and predict responsive output tokens.
Tokens don’t’ have intrinsic meaning. Tokens aren’t thoughts. They’re predictions.
The process: You enter a prompt with words to which you ascribe meaning => LLM transforms those words into definite tokens => LLM predicts probabilistically responsive tokens based on training data => tokens transformed into words => you ascribe meaning to those words.
Our current LLMs don’t “know” what they are “saying.” They aren’t saying anything. They’re generating predictive tokens that become words that you give meaning.
How Humans Use Language
Humans use language to express thought. We accept that words are ambiguous (my “red” may be your “maroon”), but with craft and care, we express ideas. Good writers show rather than tell, transporting, convincing, and moving readers with ambiguous words.
For humans, thought precedes language.
We don’t predict probabilistically responsive statements. In conversation, we might engage, listen, or respond… or not. Silence can be the most powerful response.
We Don’t Know How It Was Trained
As investment flooded into LLMs, training data became proprietary secrets. And LLMs seemingly improved with more data.
The problem: today’s internet is garbage. LLMs are gorging on Reddit posts, tweets (not calling it X), and AI-generated slop. Of that set, Reddit posts may be the best data. Think on that.
National Literacy Institute data (2024):
· 21 % of US adults are illiterate.
· 54 % of adults have a literacy below a 6th grade level.
Meanwhile:
· Over 93 % of US households have internet.
· 96 % of adults use the internet.
· Over 50 % of internet content is AI-generated.
Published works weren’t enough. LLMs needed more data. They got the internet.
What This Means For Legal Practice
Attorneys must consider what data LLMs have accessed during training. Most individual settlement amounts are confidential. PAGA and class settlements can be public but are often housed behind paywalls and disparate court filing systems. Steve Pearl has compiled excellent PAGA Judgement data.
But breathless “nuclear verdicts” coverage is readily available. I’ve seen no databases tracking dismissed, defense verdicts, granted dispositive motions, or nominal settlements.
No Confidence Intervals
LLMs calculate predications designed to elicit positive reactions. But they don’t reveal confidence levels. They respond with certainty because they must respond.
Example: ChatGPT once offered me two responses and asked which was better. I preferred elements of both. The point: LLMs constantly generate multiple potential responses but typically show only one. With absolute confidence. You have no idea how “accurate” the LLM considers its own response.
And yet…
Clients use LLMs to value their cases. They input facts, likely skewed to their side, and request valuations. This happens on both sides. And the same case likely receives vastly different valuations. As advocates, you must be prepared to address what the LLM “told” your client.
Next week: how to use LLMs effectively and how to discuss LLM predictions with clients.
Until then,
Monday x Morello Mediation.
None of this is legal advice. Your mileage may vary.
When to Mediate: Managing Uncertainty and Knowing Your Client
Deciding when to mediate requires managing uncertainty and knowing your client.
The Timeline
Single plaintiff cases have three stages. Class cases add three more:
1. Early Mediation
Pre-filing
Post filing, pre-discovery
Pre-Class / PAGA list disclosure
2. Litigated Mediation
Class/PAGA list disclosed
E-Discovery Commenced
Post Plaintiff / PMK Deposition
With MSJ / Class Cert pending
3. Late Mediation/MSC or Post Class Cert
Post MSJ – Pre-trial
Post Class Cert pre-class discovery
4. Mediation during Class Discovery
Class Wide E-discovery
Class related PMKs
Full class data disclosure
5. Mediation with Class MSJ / dispositive motion pending
Decertification motions
MSJs
6. Late Class Mediation
Post Class Dispositive/decert motion, pre-trial
Most cases fall somewhere within that framework. Class cases add complexity but follow the same logic: more information brings more certainty — but at the cost of time and money.
Why It Can’t Always Be Early
When a demand letter lands or complaint is filed, employers possess employee records, pay data, disciplinary files, communications, and investigation results (if any). They know the plaintiff, the PMKs, the likely witnesses, and have some sense how those witnesses will perform. Ideally, the employer defendant should have enough to evaluate the case early and strategically share information that allows the plaintiff to do the same.
But corporations aren’t built to respond to litigation. Legal departments are cost centers, often a “shared services,” detached from the front-line. If the matter is farmed out, outside counsel often faces limits: one point of contact, partial access to employees or data, and little budget for a deep early dive. Outside counsel must ask: are the gaps in the case, or the client’s hesitation, so significant that an early mediation would be unproductive?
Plaintiffs: don’t be surprised if you know more than opposing counsel. You may face “delay, deny, defend” tactics, but you’ll always deal with corporate realties. Companies don’t treat litigation response as a core competency. Sometimes, formal discovery is the only way to get a straight answer. Plaintiff’s counsel must ask: do you need that straight answer for productive mediation, or can you use the uncertainty during a mediation to your advantage?
EPLI Issues
EPLI carriers often demand discovery before meaningfully discussing resolution. Resolving matters within the SIR avoids this problem. But for insured higher dollar value matters, expect case development sufficient for carries to check their boxes, model exposure, and allow adjusters to deem the case resolution-ready.
The Other Side
Timing isn’t just about managing your uncertainty; you must think about the other side – what do they want and what do they know. Remembering the Six Opposing Counsel Archetypes? Provide enough information to them to conclude mediation would be productive.
Using Mediation: Uncertainty Reduced, Uncertainty Weaponized
Pre-mediation disclosures can alleviate factual uncertainty, more efficiently and often more productively. This is especially true for early class mediations, where all parties know any settlement will need to be supported by sufficient disclosures to satisfy Dunk/Kullar. And in single plaintiff cases, companies will be more responsive to targeted document inquiries for the purposes of mediation as opposed to a deep dive into their ESI.
But be prepared: mediators weaponize uncertainty. How will your client perform during deposition? We all know PMK depositions can crater quickly. What’s lurking in all those slack messages, emails, texts? Were telegram, whatsapp, signal used? The further you go, the more your case resolves on known facts, rather than the fear of the unknown.
Know your Client
Once you’ve assessed factual uncertainties, talk to your client. As defense counsel, ask about:
Cash flow concerns related to booking a resolution on the mediation date.
Quarter end concerns that could affect the mediation.
Accounting issues affecting the choice of mediation date.
Incentive plans affected by resolution.
Flat fee agreements and payment tranches triggered if the matter doesn’t resolve.
Other cases that may affect mediation scheduling and attention.
Internal political issues affected by your case.
Use scheduling as an opening to discuss business strategy, not just case posture. This is your moment to shift from “hired gun” to trusted advisor.
If you’re plaintiff’s counsel, have the same conversation, just inverted. Where does this case fit in your client’s broader life? What non-legal realities might drive (or derail) settlement?
And don’t assume defense counsel has surfaced every internal constraint. Better to raise those questions early than discover, on mediation day, that the defendant “can’t settle this quarter for accounting reasons.”
Perfect Timing Doesn’t Exist, Informed Timing Does.
There’s no algorithm for choosing the perfect mediation date. But there’s an effective mindset: understand what’s uncertain, be comfortable with the uncertain, and know your client.
That’s how you time effective mediation.
Next week: AI. For better or worse, your clients are using it, so you need to, too. We’ll break down what transformer models do, why it’s different from how we use language, and how to use (and not misuse) them in practice.
Until then,
Monday x Morello Mediation.
None of this is legal advice. Your mileage may vary.
Invested, Not Neutral
Mediators are colloquially called “neutrals.”
We don’t advocate for a party or legal theory. We have no conflicts. In that narrow sense, yes, we’re neutral.
But “neutral” can imply passivity. Some mediators do act as detached observers – facilitating discussions, staying out of the fray, letting the parties find their way. They act as neutral sounding boards, there to help communication, then neutrally stepping back when the parties can’t find their own resolution solution.
“Neutral” can also imply evaluative. Reviewing the case like a judge, logically, dispassionately deciding who has the best of it, and offering firm opinion.
As an advocate, those types of “neutrals” weren’t my favorite. I appreciated good communication. I wanted to know the weaknesses in my case. But I wanted a mediator who dug in – someone who found solutions and showed my client a path forward without litigation. Someone who let my client know that they were in good hands if the case went to trial, but who opened my client to discussions regarding the practical realities of litigation. Someone who created a safe space to discuss risk without my client losing face.
I try to be the mediator I wanted.
I make sure all parties feel heard. I facilitate and guide discussions. But I also make it clear from the outset that I believe in the mediation process, and I’m there to zealously advocate for resolution.
I’ll propose solutions that both parties hate. I’ll float impractical ideas. I’ll ask uncomfortable questions. I’ll take the heat from your client if it helps them redirect their anger away from the other side. My goal: create that space where you can show your client that you’re interested in their long-term future, not just this particular matter.
I advocate to contain the past, and focus on the future.
I also tell parties to take my evaluation (or any evaluation) with a grain of salt. If you’ve practiced long enough, you’ve had cases you should have won – but lost. And cases you know you should have lost – but won. Rough justice is what our system produces when a judge or jury decides your matter. If we’re lucky.
And if the matter doesn’t resolve on day one, I don’t disappear. Follow-up continues as the case progresses. You never know when a shift in circumstances might reopen negotiations.
The best mediators I worked with weren’t neutral – they were invested.
I bring that same investment to my mediation practice.
Coming Up Next: We’ve wrapped up the foundation topics. Next week, we’ll move to what can be done before mediation to set yourself up for success.
Until then,
Monday x Morello Mediation.
None of this is legal advice. Your mileage may vary.
Why use a Mediator? Empathy and the Zealous Advocate
The preamble to the ABA Model Rules of professional conduct defines an advocate’s role:
“As advocate, a lawyer zealously asserts the client's position under the rules of the adversary system. As negotiator, a lawyer seeks a result advantageous to the client but consistent with requirements of honest dealings with others.”
Notice what's missing: "understanding" the other side. "Empathy." Sure, you need to understand counterarguments—but that's intellectual work, not emotional labor. Nothing in an advocate's role requires cognitive empathy: the ability to understand another's perspective or mental state, to get where someone else is coming from.
I’ve met plenty of excellent advocates who lack empathy. They know their client has been wronged (even when their client is the defendant), and they find the most effective path to right that wrong in court. They empathize with their client. The other party, not so much.
Avoiding empathy for the opposing party may be self-preservation. The advocate sidesteps cognitive dissonance: they know their client has been wronged and advocate zealously. The opposing perspective is one to overcome, not one to understand.
Similarly, many successful litigators don’t communicate effectively with opposing parties or counsel. In their minds, their job: convince judges, inform clients. If opposing counsel or party happens to understand the argument, great. But that’s incidental, not the goal. They’re professional and courteous, but they’re not trying to communicate in a way that will be heard by the opposition.
The Empathy Push
Bar associations and similar groups increasingly urge more empathy in the practice of law. Judges, mediators, or other neutrals lament that one side “shows no empathy”. But these critiques often mistake professionalism with empathy.
Treating opposing counsel with respect is effective advocacy. But that’s different from an advocate empathizing with the opposing party. And lack of empathy for a party doesn't necessarily lead to hostility toward opposing counsel. There’s a difference between grabbing drinks with opposing counsel and understanding their client’s perspective. As an advocate, working relationships with opposing counsel matter more than understanding where their client is coming from.
If empathy comes naturally and you can manage cognitive dissonance, great. But if empathy isn’t your strength, spending time developing empathy towards opposing parties won’t necessarily make you a better advocate. It might just drive you crazy.
Why this Matters for Mediation
Recognizing your relationship with empathy, whether it’s absent or temporarily pushed aside for the sake of zealous advocacy, should inform your decision to hire a mediator.
Zealous advocates retain mediators to communicate with the other side. To translate zealous arguments into forms digestible to someone beyond clients or judges. Mediators aren’t judges, they aren’t “deciders.” They’re just third parties bridging communication gaps. And bridging those gaps means both sides feel seen and heard. Empathy may not be required for advocates, but it’s essential for mediators.
My argument: mediators need empathy. Advocates? Maybe not. Empathy can enrich your normal life, generally, but it’s not a prerequisite for an effective advocate.
The Evaluative Alternative
But plenty of mediators operate purely evaluatively. They deliver forceful opinions on who’s right, who’s wrong. Definite. Firm. Take your medicine – no sugar. I haven’t seen success with this approach, as defense counsel, in-house counsel, plaintiff’s counsel, or now as a mediator. It is certainly an approach, but it’s not one I’d recommend.
If there was a way to turn on comments that wouldn’t result in spam, I would. I’d welcome debate and would like to know:
· Do clients or firms seek empathetic advocates?
· Do advocates find empathy useful in practice?
· Do parties prefer the evaluative, no-nonsense mediators?
Maybe LinkedIn will weigh in.
Monday x Morello Mediation.
None of this is legal advice. Your mileage may vary.
Why Virtually Every Class Action Should Be Mediated: Lessons from Bartz v. Anthropic
Not all class mediations are the same. Remember: the substantive law drives the cultural norms at mediation. A wage and hour class mediation operates differently than consumer, product, or fair use cases; different language, different expectations, different rhythms.
Despite these differences, virtually all class cases should be mediated, even if you think you’ve identified a rare “Easy Decision” destined for trial. Timing varies (before or after class certification are common inflection points), but class mediation remains the rule, not the exception.
Judges Want to See Mediation
Even if you ultimately try the case, demonstrating good-faith mediation efforts benefits everyone. Judges notice.
Courts publish expectations. The Los Angeles Superior Court provides judges with a preliminary approval checklist (https://www.lacourt.org/division/civil/pdf/PreliminaryApprovalofClassActionSettlement.pdf) covering both PAGA and class cases. While some courts approve PAGA settlements through less formal procedures, hitting LASC checklist highlights remains good practice. Seasoned class/PAGA mediators guide parties through these requirements.
As described in the checklist, settlement agreements require explaining how resolution was reached. Mediation makes this paragraph write itself. Courts view mediation participation as evidence of arm's-length negotiation. And an arm’s-length negotiation creates a presumption of fairness at preliminary approval. Judges want to check that box: hard-fought mediation before an experienced mediator.
Pre-mediation exchanges can also be used satisfy your Dunk/Kullar investigation requirements. (California practitioners: read Dunk v. Ford Motor Co. (1996) 48 Cal.App.4th 1794 and Kullar v. Foot Locker Retail, Inc. (2008) 168 Cal.App.4th 116.)
Avoiding Discovery Hell
Formal class discovery is expensive and breeds motions to compel. Plaintiffs turn over every rock to prove adequate representation. Defense counsel reflexively objects – the discovery is always overbroad (and more importantly, their clients are not going to be happy when they learn the full scope of permissible class discovery).
Pre-mediation disclosures can change that dynamic. Experienced defense counsel will understand the investigation necessary to get a class settlement approved. And plaintiff’s requests will be more focused on requirements for preliminary and final approval, not comprehensive fact-finding. The parties can focus on identifying key documents, and statistically reliable samples, if appropriate. The process still often ends up being unnecessarily adversarial, but it is more efficient.
Prospective Relief and Policy Changes
Policy changes or other changes in a defendant’s behavior can be built into a class settlement. Those changes increase class value and provide some forward-looking protection. Courts and plaintiff's counsel rarely endorse new policies outright, but I've seen them agree that proposed policies don't facially violate the law. This "negatively framed" endorsement can deter future class actions.
Case Study: Bartz v. Anthropic
The recently settlement in Bartz v. Anthropic (Northern District of California) shows the pain when a case can’t resolve early, and mediation's effectiveness at the right time in complex negotiations. Big stakes, big companies, big firms. For class action or AI practitioners or nerds, read the preliminary approval motion and settlement agreement. Authors and rights holders should review the Author's Guild summary. (https://authorsguild.org/advocacy/artificial-intelligence/what-authors-need-to-know-about-the-anthropic-settlement/)
The Players
Plaintiffs: copyright owners of books.
Defendant: Anthropic, a privately held company (backed by Amazon and Google) that developed the Claude family of LLMs. As of this writing, Claude targets B2B markets while ChatGPT focuses on consumers, though this landscape shifts constantly.
The claim: authors deserve compensation for their works being used to train LLMs. Notably, likely because of Authors Guild v. Google, Inc., 804 F.3d 202 (2d Cir. 2015), plaintiffs confined allegations to downloading and using pirated versions of their works.
The Landscape
Similar cases abound: Disney sued MidJourney, The NYT sued Microsoft and OpenIA. UMG sued Suno. Text, images, video, sound, all copyrightable, all subject to AI litigation. McKool Smith, among others, maintains a tracker (https://www.mckoolsmith.com/newsroom-ailitigation-32); GW GW offers a more extensive database (https://blogs.gwu.edu/law-eti/ai-litigation-database/).
Hard Fought Litigation
Judge Alsup’s standing order in class cases prohibits settlement discussion without Court permission. After discovery began and while defendant's summary judgment motion was pending, permission arrived. The parties mapped out a plan, held multiple mediations, but the case didn’t resolve.
Full discovery and motion practice ensued.
· Plaintiffs severed 186 RFPs, 29 ROGS, and 65 RFAs.
· Defendants served 263 RFPs, 75 ROGS, and 395 RFAs.
· The parties agreed to protective orders, ESI and hard copy protocols, and training data and source code review protocols.
· Production exceeded 2 million pages, including on-site-only source code review, plus gigabytes of Slack messages, wikis, and Google Vault data.
· Twenty depositions followed.
· The Parties fought 17 discovery motions (with 11 hearings).
· The court and a special discovery master were needed to guide the parties through this class discovery.
· Third-party and expert discovery added complexity.
Then Motions. Defendant's summary judgment motion: granted in part, denied in part. Plaintiff's class certification motion: granted on July 17, 2025.
The parties spent millions on class discovery and motion practice. Bartz is a special case, but the scope of class discovery and the cost of discovery and motion practice is not. Class discovery and motion practice punishes everyone.
Resolution
After the MSJ and class certification rulings, settlement discussions resumed. The parties retained Judge Layn Phillips. If you know Judge Phillips's reputation, it is not a surprise the parties chose him to help them reach resolution.
Extensive pre-mediation calls with Judge Phillips preceded the August 19 in-person session. The case didn't settle that day, but the foundation was laid. Negotiations continued through the weekend of August 22-25. Late on August 25 (August 26 East Coast time), the parties executed a binding term sheet, subject to court approval and settlement procedures.
Getting the right parties to the table mattered. An “Author-Publisher Working Group,” led by the Author's Guild and Association of American Publishers, advised class counsel on author and publisher interests. Judge Phillips remained on retainer to resolve intra-class or defendant disputes. Beyond monetary relief, the settlement included prospective relief.
Three elements drove resolution: identifying and involving all interested parties, timing (or getting sufficient guidance from the court, and retaining an expert and creative mediator (who was willing to go beyond just a single day mediation). Well, that and 1.5 billion dollars.
Preliminary Approval
Then they submitted their preliminary approval motion to the Court. Judge Alsup has a reputation for scrutinizing class settlements. He didn't disappoint. After an initial hearing, he sent parties back to revise. Then came 34 written questions a week before the next hearing. Counsel responded with answers and supplemental briefing. On September 25, 2025, the court granted preliminary approval.
Lessons
Bartz shows the full class action lifecycle: early resolution attempts, massive discovery when settlement fails, novel legal issues, then intense mediator-assisted negotiations. This first-of-its-kind resolution may function as a bellwether settlement, setting the market for future cases.
Bartz involves cutting edge legal issues most class practitioners won’t deal with often. But the lifecycle it demonstrates applies broadly. Congratulations to all parties and Judge Phillips for navigating to preliminary approval.
Monday x Morello Mediation.
None of this is legal advice. Your mileage may vary.
The Six Types of Opposing Counsel (And How to Get Each to Mediate)
You've analyzed the facts, law, and client risks. The case is ready for mediation. Time to call opposing counsel, pick a mediator, and schedule the session.
But…
Opposing counsel will fit one (or more) of six archetypes. The right timing for mediation depends not just on your analysis, but on how your counterpart handles uncertainty.
During our careers, we’ve all been one or more of these archetypes. They’re presented without judgment.
The Six Archetypes
The Dabbler
The wild card: an attorney handling a case outside their wheelhouse. They may miss legal nuances, key factual issues, or not have a handle on market valuations.
But Dabblers can adapt. They often have good instincts. The Key is patience. Guide them gently towards seeing the case is mediation-ready. Then choose a mediator who can communicate applicable law without triggering defensiveness.
The Early Bird
This attorney talks resolution before knowing their theory of the case. They may know broad facts, but details are not their strong suit. Your challenge: ensuring adequate case development so that mid-mediation, the Early Bird doesn’t get cold feet and turn into a Worrier.
The Analyzer
Experienced and methodical. They evaluate risk accurately, manage clients effectively, and keep discovery focused. They’ll mention mediation only when the case ready – not too early, not too late.
The Worrier
They see ghosts behind every corner. They can’t consider mediation until rounds of written discovery and multiple depositions. Their caution may come from past burns, a lack of confidence about their handle on the law, or client constraints.
The Trial Zealot
They want trials. Period. Often government attorneys or reputation-builders, they believe every client’s interest is best served by trial – and they want to be known as THE attorney who will try ANY case. They may not burden you with excessive discovery; instead, you’ll find they race toward trial – developed record be damned.
The Reckless
They thrive on noise: scorched-earth discovery, combative meet and confers, absurd valuations. Every case is “worth” eight figures, or they are being “generous” offering to settle for a waiver of costs.
Their tactics generate billables or feed client delusions, painstakingly forcing resolvable cases into trial.
How to Respond
Early Birds, Analyzers, and even Worriers will usually agree to private mediation. Worriers may need gentle handling – don’t be afraid to describe your theories and provide documents under privilege. That can be the difference between formal discovery and informal pre-mediation disclosures. Consider accepting the Worrier’s preferred mediator, they’ve likely chosen someone who understands their specific concerns and how to address their uncertainty.
I’d recommend you treat Dabblers like Worriers. Don’t be abrasive, provide relevant case law and suggest subject-matter experts as mediators. Avoid condescension.
That leaves the Reckless and the Zealots. They’ll rarely ever agree to a private mediation. But in many jurisdictions, courts can order mediation or mandatory settlement conferences (MSCs).
In Southern California, three resources include:
· the ResolveLA MSC program,
· the LA Superior Court MVP Panel, and
· the Central District Mediation Panel.
LA Superior Courts often default to ResolveLA. But note the difference: ResolveLA runs MSCs. You don’t choose your settlement officers, you don’t get pre-mediation calls, and sessions can cut off abruptly after three hours. That works fine when trial is imminent. It’s less effective for early mediation.
For early cases, request the MVP program, not ResolveLA. The MVP program (like its federal counterpart, the Central District panel) lets you choose mediators, allows pre-mediation calls, permits extended sessions, and provides full California mediation privilege. That privilege makes pre-mediation disclosures more viable.
Check your local jurisdiction for similar programs. Court-ordered mediation won’t guarantee resolution. But you’ll get a third party-voice who can help stress test whether that eight-figure demand on garden variety emotional distress with $5,000 in lost wages is real or theater. Similarly, it will let a mediator speak directly to defendants who might otherwise cling to “waiver of costs or nothing.”
Next week: class cases, where mediation has become standard (and almost necessary).
Until then,
Monday x Morello Mediation.
None of this is legal advice. Your mileage may vary.
Mediation Strategy: Five Risks to Consider Before Trial
This last week, social media has been especially loud. It reminded me how little space there is for silence or quiet reflection—and how easily our attention is packaged and sold. Social media is not free. Your attention, your time, your feelings, and your engagement, they’re the products being sold.
I has also made me think about why I post. I post to give you, the reader, a sense of how I think as a mediator and to show you:
I can help you settle cases while strengthening your relationship with your client; and
I’m someone you wouldn’t mind spending a full day with during a mediation.
This is advertising for my firm. I wish more content carried that kind of disclaimer; clear about its purpose, its goal, and who benefits.
On with the post.
Difficult – Strategic Decisions
If your case isn’t a unicorn and it’s not bellwether, does that mean you should book your mediation early and often?
The lawyerly advice is often the right advice: it depends.
I present the factors below while acknowledging that behind every case, there is a real client; someone who suffered real damage or is being accused of a wrongful act. In each mediation, we don’t lose sight of every case is individual, every party has unique concerns.
But as lawyers, especially those managing a busy docket, we need a way to evaluate, categorize, and value our cases. What follows are broad generalizations, but they are useful guideposts. These considerations often build on each other, intertwine, and inform whether, or when, a case should be mediated.
Reputational Risk
The nature of the case attacks your client’s reputation in a way that creates risk independent from the immediate monetary resolution value. Think: a publisher accused of a false publication (the WSJ and the Epstein Birthday Card), a law firm whose brand hinges on showing it can fight, or allegations of sexual assault.
On the other hand, consider whether litigation drags your client through the mud for years, hurting their ability to get a new job, land new business, or move forward.
Remember Johnson & Johnson’s handling of the 1982 Tylenol poisonings: an immediate recall, outreach to regulators, transparency with the public. That crisis response preserved their reputation, even as they defended individual lawsuits. Only on the courthouse steps did J&J settle—and by then, its stock had recovered, and its strategy was being taught as a blueprint for crisis management.
Every case poses reputational risk. Realistically assessing those risks early with your client will help determine if (or when) the case is ripe for mediation. Some risks are obvious, some subtle, some more perceived than real. Discuss all of them with your mediator.
Business Practice Risk
Some allegations go to the heart of how a company operates. Uber’s contractor model. A law firm’s access to federal agencies. How AI models are trained.
Other allegations may implicate only a one-off policy or a single event unlikely to repeat.
If change is possible, mediation is a powerful forum to explore solutions and even incorporate them into settlement. In class cases, policy changes can be part of the package. (I’ll be writing more on class cases soon.)
Even when the company says it can’t, or won’t, budge, mediation can at least open dialogue about solutions other than an all-or-nothing trial.
Both business practice and reputational risks are often cited as deal-breakers. In practice, they rarely are. Over the course of a mediation, beginning with pre-mediation calls and continuing through one or more sessions and then through follow up negotiations, when decision-makers focus on overcoming obstacles, they usually can.
Case in point: Bartz v. Anthropic, a class action settlement now pending preliminary approval. The motion for approval is worth a read if you follow class settlements. I’ll be unpacking that and others in future posts.
Key Employee Risk
Are you dealing with a CEO or a front-line employee? How much time will litigation take from your client’s leadership, or from their ability to provide for their family? The role an individual plays within an organization or household may counsel early mediation, mediation after an internal investigation, or sometimes no mediation at all.
Severity Risk
How severe are the allegations? Is there documented unlawful touching backed by medical records, or vague accusations of sideways glances? This dovetails with reputational risk: the more salacious the allegations, the more likely the case gains attention.
Client Risk
Who is your client—and who is across the table?
How will your client perform at trial?
Are they capable of making informed decisions?
Is your client a minor? Is the accused still employed?
Is trial part of their broader legal strategy? (If so, congratulations—you have a client most lawyers dream of.)
Is your client pursuing the case to make a point rather than address a past wrong?
Understanding your client’s goals, abilities, and definition of “a win”—is critical to deciding whether mediation makes sense.
Pulling It Together
Evaluating these factors will identify the rare case that truly must be tried. But for the vast majority, two truths emerge:
Clients aren’t absolute barriers to resolution.
Both sides carry risks.
That’s when mediation makes sense.
Next week: what happens when you’ve done your homework, your risk analysis points toward mediation, and the other side refuses to come along.
Until then,
Monday x Morello Mediation.
None of this is legal advice. Your mileage may vary.
Mediation: Not Every Case
Attorneys have too many cases; Judges even more so. Thus, every case should be mediated, right?
Absolutely not.
Despite the issues with our judicial system, some need trial. And if you want your case tried, question whether mediation is a good use of resources. So then, what cases go to a judge or jury for a decision?
The Easy Decisions
These are cases where understanding what the past means is more important than moving forward. Here, the past can’t be contained; it must be examined and defined.
New Law
Maybe your case is going to be one of the 46 non-death penalty opinions written by our Supreme Court. Or maybe your case is going to be one of the 9% of all appeals that result in a published opinion.
Ideally, you’ve identified a narrow open question that will affect a broad swath of your clients. Then you’ve found a client who has a compelling story – without the compelling story, as the saying goes, bad facts make bad law. And then that client is more interested in pushing the law forward more than their individual damages.
Here, the point isn’t what happened; it’s what it means.
When this unicorn case comes around, don’t spend the time or money on mediation. Get the trial judge’s attention, and let the court know – early and often – what open question your case is going to address. Spend your money on experienced appellate counsel to set the inevitable appeal.
Bellwether Trials
Often, mass torts, MDL, or similar cases need a few trials before resolution is possible. Liability theories need testing; damages models need data. Bellwether trials provide both.
Even in these cases, setting up a post-trial resolution program, that may include mediation, could work. Mediation can also test theories: use it like a mini-mock trial, run multiple mediations to obtain data points, or see if an offer you can’t refuse exists. But usually, a true mock trial serves you better, without giving the other side a full preview.
Some may suggest arbitration for bellwethers. My thoughts: most bellwether trials happen in courtrooms, not conference rooms – and for good reason.
When Mediation Works
Mediation is best used when there is a chance to move forward without litigating the past. If the case requires determining what the past means, either to move the law forward or to value a novel event, that’s what trial is for.
Bet the Company?
You’ll note, I didn’t discuss the proverbial “bet the company” case. The phrase has been used so much it’s lost all meaning. Does it mean a challenge to a company’s business model? An accusation against a senior executive? Salacious facts? Vindications of a client’s rights? Or just a lot of money?
Next week, we’ll look at how to evaluate these difficult cases—ones that often go to trial but may still benefit from mediation.
Until then,
Monday x Morello Mediation.
None of this is legal advice. Your mileage may vary.
Overloaded Attorneys, Overloaded Courts: Enter Mediation
You aren’t the main character.
As attorneys file more cases, Judges must handle the increased volume. But judicial resources have not kept up. Judicial appointments have become politicized, with unfilled seats on the bench plus regular retirements, leaving sitting judges with even heavier dockets. More cases mean less attention per case. This isn’t criticism, it’s reality. Our judges do an incredible job with the resources they have. We need more judges, and they need to be paid more.
But until that happens, some sobering numbers:
The Ninth Circuit
The entire Ninth Circuit is authorized for 29 appellate judges and 112 district court judges. Today, there are four current and two future District Court vacancies. In 2023, there were 7,784 appeals and 55,933 new filings in the Ninth Circuit.
That’s more than 500 new filings per sitting district court judge.
California
In California state court, there are 7 supreme court justices, 106 justices in the Courts of Appeal, and approximately 2,175 trial-level judges, commissioners, referees, assigned judges, and temporary judges.
Caseload data for the California Supreme Court, Courts of Appeal, and superior courts for fiscal year 2022–23 is summarized below (from the 2024 Court Statistic Report):
Supreme Court
· Issued 56 written opinions.
· Filings: 5,490; dispositions: 5,764.
Courts of Appeal
· 20,097 contested matters (14,298 appeals; 5,799 original proceedings).
· 22,004 dispositions; 15,179 were appeals; 6,825 were original proceedings.
· 7,899 written opinions on appeals; 4,756 disposed without written opinions; 2,524 disposed without a record filed. 266 written opinions on original proceedings, 6,559 original proceedings disposed without written opinions.
· 9 percent of Court of Appeal majority opinions published statewide.
Superior Courts
In FY 2022–23, over 4.5 million cases were filed statewide in the superior courts:
· Civil: 255,914 unlimited civil cases; 402,019 limited civil; 74,855 small claims.
· Criminal: 183,151 felonies; 439,041 misdemeanors; 2,621,465 infractions.
· Family and Juvenile: 111,894 marital; 209,363 other family law; 26,058 juvenile delinquency; 31,953 juvenile dependency.
· Probate, Mental Health, Appeals, and Habeas: 60,286 probate; 96,112 mental health; 2,419 civil/criminal appeals; 4,569 habeas cases.
4.5 million filings in our Superior Courts. 255,914 unlimited civil cases. Let those numbers sink in. Do you think your case is the most important one on your judge’s docket?
When you walk into a judge’s courtroom, you are not the main character. If a judge knows the name of your case – let alone your name – that’s a testament to how hard our judges work.
And you had better know your case better than your judge. The facts, law, opposing counsel, parties - all of it. And a Jury? They’ve literally heard nothing about your case until you open your mouth.
But if you know your case better than the judge and jury, then why are you asking them to decide it?
You had better have a very good reason why your client is paying you to fight for an overworked trial judge’s attention – or worse, to ask 12 strangers to hear evidence for the first and only time over a few days, and to make factual determinations – when you’ve lived with the evidence for years.
Maybe, just maybe, mediation is a better way. A chance for attorneys, who know the case best, to help clients resolve disputes voluntarily.
Monday x Morello Mediation. None of this is legal advice. Your mileage may vary.
Why Is Mediation Becoming More Prevalent?
It wasn’t always like this.
I externed for Judge John Munter of the San Francisco Superior Court. He’s still the quickest, most intense attorney I’ve worked with. But he practiced law in a time before text messages, email, or even the fax machine—so unfamiliar with computers that he used a handwritten checklist just to open a document.
As he looked out over San Francisco’s Civic Center from his chambers, Judge Munter once told me:
“When a matter first comes in, the most important thing any attorney can do is take a moment, put their feet up, look out the window, and think about how the matter is going to end.”
He worked cases backwards. His trial plan informed every motion, every discovery request, every letter. And he lamented attorneys who came to his courtroom with a record that showed they’d never once imagined the case going to trial.
Gregg Sindici, one of the first partners I worked with, kept a little black book—a handwritten index of all important cases he’d encountered. He dictated every motion and letter. And he called the fax machine the single worst invention for the practice of law:
“We used to talk to opposing counsel. Letters used to take time. Now we just fire off faxes.”
When I started practicing, mediation wasn’t the standard. Most cases settled because attorneys picked up the phone, often calling someone they already knew, and worked it out.
As time passed, case volume grew. Filing speed accelerated. “Responsiveness” substituted for thoughtfulness. California shifted from local markets to one statewide market, and opposing counsel were often strangers.
As volume rose and opposing counsel became a name and number, mediation filled the gap. At first, I didn’t get it. Why involve a third party to settle a case? But soon I saw it: mediation forced lawyers to talk. Sometimes scheduling was the first meaningful phone call between opposing counsel. Preparation for mediation was often the first time lawyers—and their clients—paused to think about how a case might actually end.
I don’t know if technology’s speed and case volume caused mediation’s growth. I haven’t run the surveys; this is my blog, not data. But as technology pushed lawyers to appear “responsive” and caseloads multiplied, mediation became a more useful, and often necessary, tool to achieve results for the client.
Next week we’ll talk more about the volume of cases courts are expected to handle and why volume favors mediation. Foundational topics continue.
Mondays x Morello Mediation. None of this is legal advice. Your mileage may vary.
What is Mediation?
California Rule of Court 3.852 defines mediation as:
“…a process in which a neutral person or persons facilitate communication between the disputants to assist them in reaching a mutually acceptable agreement.”
That’s a serviceable definition. But it omits the confidential nature of the process and casts the mediator as passive. It also suggests direct party-to-party communications, which almost never happens in employment mediations.
Let’s do what all the kids do these days: ask ChatGPT. After some back and forth, these are the words translated from tokens that ChatGPT produced:
“At its core, mediation is a structured negotiation facilitated by a neutral third party. That’s it. It’s not magic. It’s not therapy. It’s not arbitration. And it’s not just ‘settlement talks with snacks’ (though the snacks do help).
Mediation is voluntary. Confidential. And unlike a judge, the mediator doesn’t decide anything. Their job is to keep the conversation going, reframe unhelpful narratives, and help the parties move toward resolution—even if that resolution looks a little different than what each side thought they came for.
That’s the neutral, handbook-friendly version.
Here’s the one you’ll probably relate to more:
Mediation is the one day in a case where people stop posturing and actually talk about outcomes.”
Interesting. I’m not sure what concept “structured” is meant to capture. I like that the mediator is more active than the CRC definition. And while “settlement snacks” once expanded our waistlines, Zoom mediations have made the left-over Halloween chocolate, old sticky jolly ranchers, and microwaved warm cookies the exception rather than the rule.
Re: the idea that attorneys and parties don’t posture in mediation—ChatGPT has never been to an actual mediation.
So I’ll take the bait and give my own definition. And because this is my blog, I’ll start with my mediation “inception” moment.
Nixon
In law school, I was all about Moot Court. Arguments, briefs, all of it. I couldn’t imagine doing anything but litigating.
I remember standing in the old Hastings cafeteria line with my unyielding faith in litigation, and talking to Jarret Nixon. Nixon looked at litigation with a bemused disdain that I couldn’t understand. So I asked why. He didn’t hesitate:
“Justin, litigation always looks backwards. I don’t want to spend my career reconstructing the past.”
That’s not an exact quote—Nixon probably said it better. But he planted a seed of doubt. Over time, I realized that little shit was right.
Litigation keeps clients trapped. Trapped in their trauma, their defenses, their past. And when it ends (because it always, eventually, does) it rarely ends with a published opinion that benefits the client.
As my career progressed, Mediation became a more prevalent means to end matters. I saw it as a potential pivot point. When done right, Mediation was a process that helped the parties contain the past and focus on the future.
A Practical Definition of Mediation
Mediation is:
1. A confidential facilitated process
In my area of practice, this “process” usually means one full-day meeting. Sometimes it’s a half-day or multiple sessions.
The “process” also includes pre-mediation calls, follow-up calls, briefs, and related pre- and post-meeting work.
Mediation may be required by contract, policy, court order, or agreement of the parties. Most often, though, the parties agree to mediate just before or during litigation.
The mediator does not represent either party, nor do they decide facts or law. But they are hardly passive: the mediator advocates for resolution.
Under California law, the mediation privilege is among the strongest.
2. Between parties in a dispute
Getting all the right decision-makers in the room is essential—and often overlooked.
Pre-mediation calls help identify interested parties and incentives. As an advocate, come prepared to any pre-mediation call to discuss unusual incentives or dynamics.
3. Designed to resolve those disputes without further court involvement
Voluntary resolution is the only way the parties choose how a dispute ends. Otherwise, they’re leaving it to the judges (or juries).
Agreements reached in mediation need to be enforceable, ideally without dragging the court back in.
Putting It Together
So here’s my working definition:
A confidential process where the mediator gets the parties to: talk, contain the past, look to the future, and (usually) resolve their disputes—without the Court.
Like I said, I’m working on it.
In the coming weeks, I’ll discuss:
Why mediation is so prevalent in the employment space
Mediation’s benefits
Whether it’s right for all cases
Other foundational topics
Mondays x Morello Mediation. None of this is legal advice. Your mileage may vary.
Monday x Morello Mediation
I’m too old to know what the “x” means. And I’m not sure collaborating with a day of the week even makes sense, or if I like the association of my practice with Monday. But here we are: The first installment of “Monday x Morello Mediation”.
I won’t be giving timely legal updates - other folks do that better. Instead, I’m building a practical guide to mediation, with a focus on employment and class disputes. Some content may feel remedial. Some may be insightful. My goal is to build a resource that you can use to:
Prep your clients;
Educate junior attorneys;
Refresh yourself before a mediation.
But in the end, all I can really promise is content.
I’m planning six parts:
Part 1 – Foundations and Background
Part 2 – Before the Mediation
Part 3 – In the Room
Part 4 – Special Considerations - Class Mediations
Part 5 – After the Mediation
Part 6 – Practical Tools
Monday x Morello Mediation. None of this is legal advice. Your mileage may vary.