In every mediation I participate in, there’s a number that matters more than the demand, the offer, or anything written in a pleading and it’s rarely spoken aloud.

People sometimes ask me what makes a good mediator, and they're often surprised by my answer: it's not legal brilliance, and it's not forceful persuasion. It's a specific, demanding type of communication style that mediation requires.

The Florida Supreme Court heard argument a few weeks ago and is considering a Civil Procedure Rules Committee proposal to amend Rule 1.700. Under the amendment, remote mediation would have to use both audio and video unless the parties stipulate otherwise or the judge finds cause. In-person mediation would remain the default.

There is a question I am sometimes asked when lawyers are considering a mediator for a complex healthcare liability case:

Does it matter that you handled cases on both the plaintiff and defense sides?

Medical malpractice mediation is not like other civil mediation.

That statement may seem obvious. But its implications for who should be conducting it are worth examining.

In Mediation, the Most Important Territory Is Never Black and White

I recently came across a black and white photograph of myself.

There is something about a black and white image. The contrast is sharp. The lines are distinct. 

Litigation can feel the same way.

Thank you to everyone who has followed along with this series on what mediators wish lawyers would do before the mediation session begins.

For my fifth and final thought:

Lawyers should think about what “movement” looks like before the mediation begins.

Here’s another thing mediators wish lawyers would do before mediation:

Prepare to evaluate risk honestly—not just advocate.

Here’s another thing mediators wish lawyers would think about before mediation:

Know what your client actually needs, not just what they say they want.

As I continue this series, here is the second thing mediators wish lawyers would do before mediation begins:

Welcome to my newest blog series, where I’ll explore five things mediators wish lawyers would

do before the mediation session begins.

The first may seem obvious: prepare.

In medical malpractice cases, the legal process can go on for years.

An experienced mediator recognizes that negotiation is rarely about arithmetic alone.

This deeper understanding of loss aversion helps explain why mediation often reaches an apparent impasse.

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.