For decades, mediation has served as an effective way to resolve civil disputes without the uncertainty, expense, and stress associated with trial. When both parties approach the process with realistic expectations and a willingness to engage in genuine discussions, mediation can create meaningful opportunities for resolution. But over time, mediation has evolved from a strategic option into what many view as a mandatory step in litigation, regardless of whether resolution is realistic.

That shift has changed how many defense teams approach negotiation. Rather than actively shaping settlement discussions long before mediation, some attorneys and insurers wait for the process to begin, expecting the mediator to bridge the gap between the parties. In doing so, they risk outsourcing one of the most important aspects of litigation strategy.

Rather than rely solely on mediation, defense counsel should establish their settlement positions early, communicate those positions clearly to the opposing side, and resist the temptation to let mediation dictate their approach. By negotiating effectively outside of mediation, parties can often resolve cases before reaching the mediation stage or at least enter mediation with a realistic framework already in place.

Mediation remains an important part of civil litigation, but it is most effective when it complements strong negotiation, not when it replaces it. Defense teams that view mediation as one strategic tool among many are often better equipped to achieve fair, efficient resolutions while maintaining control over the direction of settlement discussions.

Are you looking for more insights that might help you win your next case? Subscribe to the Second Chair Briefing and receive a monthly newsletter with healthcare defense strategies, upcoming events, and more.