Strategic Mediation in High-Stakes Cases: Trust, Transparency, and Early Evaluation

Tue, Jul 1st, 2025 | by Miles Mediation and Arbitration | Article | Social Share

By J. Antonio DelCampo

In high-dollar litigation, mediation is not merely a procedural requirement or a perfunctory step toward resolution. Rather, it can be a pivotal moment in the life cycle of a case. When leveraged correctly, mediation offers parties the opportunity to resolve disputes efficiently and control outcomes that might otherwise be left to the unpredictability of a jury.

For cases involving substantial financial exposure, however, the stakes are too high to treat mediation casually. Seven- and eight-figure disputes demand a sophisticated approach — one that combines legal strategy with negotiation acumen and psychological insight. To maximize the potential of mediation in such contexts, attorneys must embrace three foundational principles: trust in the mediator, transparency with the opposing party, and early, fair evaluation of the case. Each of these pillars supports a mediation process that is not only effective but is also ethically sound and strategically wise.

1. Trust the Mediator — Even If the Other Side Suggested Him or Her

A frequent stumbling block in high-value mediations is the selection of the mediator. When one party proposes a mediator, the opposing side may react with suspicion. For plaintiffs’ counsel, a defense-suggested mediator may seem like a Trojan horse: an ostensibly neutral party who subtly favors insurers or corporate defendants. Likewise, for defense counsel, a mediator chosen by the plaintiff may be seen to be too sympathetic to the plaintiff’s plight. Often, I hear that some defendants would prefer not to mediate with me, because I have been a plaintiff’s attorney. While in emotionally charged, high-stakes litigation, this concern is understandable, it is often misplaced.

Top-tier mediators build their reputations not by taking sides, but by demonstrating fairness, insight, and results. Especially in large-dollar disputes, effectiveness often matters more than appearance. A mediator trusted by the defense may, paradoxically, be better equipped to move the defense off a rigid position. The same holds true in reverse: a mediator known for empathizing with injured plaintiffs may be the only one who can credibly persuade them to reconsider their valuation.

It is crucial, therefore, to evaluate mediators on the basis of substance, not source. Investigate the mediator’s experience with similar cases, read peer reviews, and speak to colleagues who have worked with him or her. Consider the mediator’s approach to managing difficult personalities, breaking deadlocks, and fostering creative settlements. The right mediator is not necessarily the one who agrees with your perspective — it’s the one who can help both sides see the bigger picture and get the case resolved. The perception of neutrality is often enhanced by the mediator’s track record of impartial success. Effective mediators are candid and pragmatic. They do not promise agreement, but they do promise a fair process. When both sides trust the mediator, they are more likely to trust the process—and that trust can be the fulcrum that shifts an impasse to a resolution.

2. Educate the Opposing Party and Mediator Before the Mediation

One of the most common causes of failure in high-value mediations is asymmetry of information. If one side walks into the mediation unprepared for the arguments, facts, or valuation theories of the other, the likelihood of a meaningful negotiation drops significantly.

Mediation is not trial. There is no real advantage to blindsiding the opposing party with new evidence or arguments on the day of the session. On the contrary, such late disclosures often derail the process, generate defensiveness, and entrench parties further in their positions. In high-stakes cases, the more constructive approach is proactive education. Parties should strive to provide all relevant information for the opposite side to adequately evaluate the case.

Counsel also should provide a comprehensive mediation brief to the mediator ahead of the mediation date. These submissions should go beyond cursory case summaries and include factual timelines, legal issues that are likely to be significant, key exhibits, expert opinions, and damages analyses. Counsel should strive to clearly articulate the basis for their valuation of the case, supported by the evidentiary record, potential legal issues, damage reports, life care plans, or industry-specific losses where applicable. These submissions can help the mediator prepare for the reality-checking that often assist the decision-makers in reaching agreement.

It is also worth considering a pre-mediation call or joint session with the mediator to align expectations and clarify any questions that might otherwise become distractions. Sometimes, counsel need to be the advocate for their clients during the mediation, but negative points of the case sometimes can be best communicated by the neutral. These preparatory steps not only build credibility but also reduce the risk that the opposing party enters the mediation unprepared to make a meaningful offer.

Importantly, transparency in the lead-up to mediation helps ensure that the decision-makers on the other side are fully briefed and ready to negotiate. In large cases, where multiple layers of authority or insurer involvement may be at play, early disclosure gives those stakeholders time to assess exposure, calibrate risk, and obtain appropriate settlement authority.

3. Fairly Evaluate the Case from the Outset

In high-stakes litigation, the pressure to win — or to avoid a massive loss — can distort early case assessments. Plaintiffs may overestimate their damages based on emotional investment or selective comparisons to outsized verdicts. Defendants may undervalue claims due to internal budgeting concerns or overconfidence in summary judgment defenses.

But mediation works only when both parties engage with the realities of their case. That begins with fair, honest evaluation.

For plaintiffs’ counsel, this means taking a rigorous look at liability theories, potential weaknesses in expert testimony, comparative fault issues, and the likelihood of collecting a judgment. It means preparing the client for a realistic range of outcomes and managing expectations early. For defense counsel, it means recognizing the true cost of continued litigation, including trial expenses, reputational damage, and the risk of runaway verdicts. Insurers and institutional clients benefit from a sober analysis that goes beyond the theoretical value of a motion to dismiss.

Early evaluation also helps align mediation strategy. When lawyers have a realistic sense of the best and worst-case scenarios, they are more likely to make credible offers, avoid insult ranges, and respond constructively to counterproposals. More importantly, it fosters internal consensus among decision-makers, reducing the chance of delay or last-minute second-guessing.

The Mediator’s Role in High-Stakes Contexts

It bears repeating that mediation is not a magic wand. A neutral cannot force parties into settlement. But an effective mediator can play a catalytic role — challenging assumptions, testing risk tolerance, and helping each side appreciate the other’s perspective.

In high-stakes cases, mediators often serve as translators between parties with vastly different risk profiles and institutional cultures. They help plaintiffs see beyond the immediate emotional stakes and view their case through a commercial lens. They help defendants humanize the plaintiff’s story and understand the optics of a jury trial.

The best mediators are also creative problem-solvers. In cases where cash alone cannot bridge the gap, they can help facilitate business accommodations, confidentiality provisions, or even apologies — elements that courts cannot order, but which can be instrumental in achieving closure.

Mediation in high-stakes litigation is not for the unprepared or the inflexible. It requires deliberate strategy, mutual respect, and above all, a willingness to engage in the process with clarity and good faith.

Trusting a mediator recommended by the opposing party may feel counterintuitive, but the most effective neutrals are often those who bring credibility and influence across the aisle. Preparing the other side through early disclosure fosters informed negotiation and reduces the risk of impasse. And evaluating the case fairly from the beginning ensures that all parties come to the table ready to deal with reality — not fantasy.

For lawyers handling high-value cases, these principles are not merely best practices. They are imperatives. Because when the numbers climb into the millions, so do the consequences of getting it wrong.

*Originally published in the Daily Report and reprinted with permission.

About Tony DelCampo

Hon. J. Antonio DelCampo, an accomplished attorney and former State Court Judge in DeKalb County, brings a wealth of experience and a track record of success to his mediation practice. Known for his adept handling of complex cases, Tony presided over high-profile matters, including civil claims stemming from the Brian Nichols courthouse shooting case, intricate medical malpractice suits, and product liability trials with significant verdicts, including one of the largest in the state’s history.  As mediator and arbitrator, Tony has helped parties resolve complex cases, including products liability, premises liability, medical malpractice, complex business, trucking and auto claims.