Every mediation involves uncertainty.

Each party must choose between:

• accepting a known outcome today, or

• risking an uncertain outcome tomorrow.

Although attorneys often analyze this as a purely economic decision, clients rarely experience it that way.

Welcome to my newest blog post series, where I discuss one of the most common psychological elements that are present in high-exposure cases. 

For most of my career, I was an advocate.

I prepared cases. I argued positions. I fought for outcomes.

Most people have a general sense of what mediation is — but the reality of what happens inside a complex case like a medical malpractice mediation is often quite different from what people imagine.

Here is my last post for my “timing in mediation” series. In my last post, I outlined the problems when mediation starts too early. On the other end of the spectrum, waiting until the eve of trial carries its own risks.

I think early mediation is often a great idea. But there are two sides to that proposition.

One of the most consequential decisions in complex litigation is not whether to mediate.

It is when.

People sometimes ask what mediation actually looks like from where I sit. It is rarely what you might expect.

There is something I don’t talk about often.

Growing up in Fort Lauderdale, I had a severe stutter, and a lisp so pronounced it was, as I once described it, “put-on-the-raincoat” time for those around me.

For eight years I attended weekly speech therapy. Nothing changed.

There is a transition that occurs when a litigator becomes a mediator.

It is not simply a change in role. It is a change in how you see a case.

As an advocate, your job is to build a narrative — to identify the strongest version of your client’s position and present it as compellingly as possible. That is the work, and it is important work.

As a neutral, the job is fundamentally different.

For more than 35 years, I handled complex medical malpractice and serious injury cases as a litigator. I prepared cases, argued positions, and advocated hard for outcomes.

And I learned a tremendous amount doing it.