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.