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.