Has Mediation Become the New “Day in Court”? The Implications for Litigators

In 1990, mediation was a flyspeck. It was about a full decade later that it began to take on a more prominent role, but fairly late in the genesis of a case and typically after failed direct negotiations. Fast forward to 2024, and it seems that mediation has become a nearly mandatory stop in civil tort litigation, and it’s happening earlier, often only after basic discovery. Defendants increasingly wait until mediation before even extending an opening offer.

To answer the initial question posited, yes, mediation has, in this litigator/mediator’s opinion, taken on a function very much like a day in court. The mediation’s success may, in part, depend on how well it performs this function, particularly for the uninitiated plaintiff having a strong emotional investment in the case and its outcome.

Elevating the Process

From the advocate’s perspective, we increasingly look at discovery as having two phases. Phase One is the “critical mass” of essential discovery necessary to negotiate and mediate. Phase Two (if needed) is the comprehensive “no stone unturned” discovery needed to bring a case to trial-ready.

Under this model, I would posit that the chances of success with mediation are enhanced when the mediation is treated as a pivotal event, aka a true day in court. (Of course, this is not meant to elevate a mediation to a court proceeding or to suggest that a mediator has judicial powers or functions. Practically and ethically, this is far from the truth. However, a successful mediation, with self-determination as the overriding principle, can provide closure and an opportunity to be heard analogously.) Using the example of a tort mediation involving serious injury or wrongful death, some of the approaches below may enhance and dignify the mediation and, in the process, improve the prospects for success:

1. Never say “just.” Particularly in this epoch of Zoom mediations and early court-mandated mediations, it is easy to resort to phrases like, “It’s ‘just’ a mediation.” Whether court-ordered or privately engaged, a lot of effort and resources should be brought to bear in the mediation. Don’t diminish it with a “just.”
2. Embrace the unique skillset needed to mediate effectively. I hit here upon my favorite topic—mediation advocacy^! Suffice it to say that we cannot approach a mediation as if a trial. At trial, we try to convince a judge or jury, with little consideration of the impact of our presentation on our adversary. Mediation is the opposite. We alienate our adversary at our peril, for it is our adversary that we are trying to persuade. I cannot overstate this, our target audience at mediation is the other side, not the mediator. Our mediation advocacy must be tailored toward this end.
3. Prepare your client. The defense side will likely be experienced with the mediation process, typically represented by counsel and an insurer, with the possible addition of a client representative. For the plaintiff, this is likely his or her first and only exposure to the mediation process. Explain the process and treat it as an opportunity to resolve the case as the decision-maker. Plaintiffs are almost uniformly intimidated by the mediation process and unprepared for the dynamics it entails. Plaintiff’s counsel should explain the process and that the defendants have a job to do that including presenting positions with which we disagree. Explain the format: openings, caucuses, etc. Ideally, the plaintiff comes to the mediation appreciating it as a key event, in which each party is expending time and resources to resolve the case. The plaintiff should feel validated by the process itself.If you are the defendant and planning to bring only your insurance adjuster to the mediation, think twice. Using my background in aviation litigation, where the plaintiff is often an innocent victim, an airline representative offering little more than empathy and condolences is often an invaluable addition to the team. Don’t underestimate the human aspects of mediation and that not all compensation is monetary.
4. Engage the mediator early. If your first interaction with the mediator is the mediation proper, you are missing out. Just about every mediation should include submissions and discussions with the mediator. This serves multiple purposes, including preparation, building momentum, investment in the process, and rapport building. These conferences can be by phone or Zoom and can include any combination of the interested parties and representatives. As the mediator, I very much want to meet the plaintiff before the mediation, even if just to say hello and explain the process. Much like a day in court, this level of preparation and engagement sets the mediation as a seminal event. Taking the time to meet the plaintiff ahead of time should build confidence and also reduce some of the trepidation that most plaintiffs have at the prospect of an unknown process. The efforts and professionalism of all involved send the message that mediation is important.
5. Don’t “pooh-pooh” the opening statement and the joint session. There are trial openings, and there are mediation openings, and never the twain shall meet. This is yet another subject worthy of much deeper treatment. The current trend is away from opening statements and launching straight into the caucuses. I think this is unfortunate. My mediations only include openings when all parties agree to them. Yet, with some advance groundwork, the parties usually do agree. Working in advance with the mediator, the parties and counsel can choreograph openings that advance the negotiation and alienate no one. The general formula is pretty simple: Allow the plaintiff’s counsel some leeway in expounding upon the accident and its impact. (It can be cathartic for the plaintiff to hear a lawyer advocate on his or her behalf.) Then, the defendant fights fire with water, rather than going blow-by-blow with the plaintiff’s oral argument. This can include acknowledging points of disagreement but also expressing genuine empathy toward the plaintiff. And no, this is not the surrender of advocacy. Rather, it is tempering our advocacy in such a manner as to facilitate productive negotiations.
6. Use the mediator effectively. Yes, this is a bit of a catch-all. Whether court-appointed or chosen by the parties, the mediator is an authority figure, particularly in the eyes of the plaintiff. Plaintiffs tend to be highly deferential to the mediator, sometimes downright awed. All disclaimers notwithstanding, the mediator’s standing, prestige, and neutrality imbue a quasi-judicial aspect to the process. It is not uncommon for a lawyer to feel her client should be somewhat sheltered from the mediation process and the back and forth of bargaining. A skilled mediator can take the edge off this process, and keeping all parties engaged in the process of self-determination can be quite empowering. Allowing the mediator to build a direct rapport with the client adds legitimacy to the process that does not translate when the client is merely kept informed. If there is some distance between you and your client on how this case should be resolved, this is where the mediator can really be useful. Ideally, this subject was addressed in pre-mediation calls, and the mediator understands her role both within and between the rooms. Mediations in which I close the gap between client and lawyer are the norm, not the exception. Should the mediation conclude with a request for a mediator’s proposal, the rapport and credibility established across all parties through an all-inclusive mediation enhances the likelihood of mutual acceptance.
7. Bring candor to the proceeding. This is a challenge to us litigators, but with mediation increasingly becoming the norm, we cannot succeed by adhering to the same adversarial approach that serves us at trial. This does not mean falling on our sword, but parties choosing to mediate are doing so in the interest of compromise. If it is a liability case, treat it as such for purposes of the mediation, leaving critical issues like comparative fault, causation, and damages on the table. If your client is the plaintiff in a personal injury case and has significant pre-existing conditions, acknowledge that there are causation issues. In mediation, each side is looking for signs that the other is reasonable, and modest concessions can go a long way in this regard. The alternative of presenting as if you have a bulletproof case or defense is likely fatal to a successful mediation. If you are unsure whether a concession should be shared with your adversary, share it with the mediator and strategize. Perhaps having the mediator share this concession in a general way is sufficient, e.g., “They understand that pre-existing injuries muddy the waters a bit.” Use the mediator as a sounding board, and consider that yielding on some of your weaker arguments may attain benefits well beyond their value.
8. It ain’t over til it’s over. There are myriad reasons why a mediation might not resolve a case in the first session. Indeed, after the mediation, both sides may have cause to recalibrate and reconvene. This is a good thing and a far cry from the issuance of a binding court order and the inevitable winner and loser. Some tenacity on the part of the mediator and parties only further invests them in the process. Consider whether targeted discovery or supplemental briefing is needed. There is also something to be said for cool reflection after the mediation and an opportunity to evaluate the numbers and settlement alternatives.

Some Closing Thoughts

If we want to gain the most from mediation as a likely endgame in litigation, it serves all participants well to dignify the process, much as they would a court hearing or proceeding. Although the mediator is powerless to dictate terms, this is the greatest strength of the mediation process. When conducted effectively, each party will feel as if fully in control of their destiny, with the guidance and assistance of an empathetic neutral party. If of the evaluative school, the mediator will also challenge the parties and their positions in a manner not unlike oral argument. Done properly and delicately, this can stimulate movement and concessions.

A successful mediation provides closure, in which the ultimate outcome is the product of agreement and compromise between all parties. Ideally, the parties are left with feelings of justice, fairness, and having been heard. Unlike a trial, which may be beset by post-trial motions and appeals, the negotiated settlement offers genuine finality.

A day in court? Technically no, but perhaps a process that justifies a similar level of focus and preparation. The reward is nothing short of complete closure and an abrupt end to the expense of litigation, elevating mediation to a (kinda-sorta) day in court would seem to be in everyone’s interests. It may also be that, in the reality of increasingly expensive litigation, clogged dockets, and years of discovery in even modest cases, posturing a case to be mediation-ready is increasingly becoming job one.