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.