Mediation during litigation differs from pre-suit mediation in important respects. The case has developed through discovery. Both sides have invested substantially in litigation. The factual record is more complete. The risks of continued litigation are clearer. These differences typically make mediation during litigation more productive than earlier mediation, even when earlier mediation failed.
Most Georgia courts now require mediation during litigation. Even where not required, mediation has become standard practice in personal injury cases.
Court-required mediation #
Most Georgia courts mandate mediation:
Standing orders. Many courts have standing orders requiring mediation in all civil cases.
Case-specific orders. Even without standing orders, courts may order mediation in specific cases.
Timing requirements. Orders typically specify when mediation must occur.
Reporting requirements. Parties report mediation outcomes to the court.
Sanctions for non-compliance. Failure to participate in good faith may produce sanctions.
Court purposes. Courts use mediation to reduce trial dockets and serve party interests.
Limitations on requirement. Courts cannot force settlement, only require attendance and good-faith participation.
Timing of litigation-stage mediation #
Mediation timing affects effectiveness; each phase offers distinct leverage:
| Phase | Strategic value | When best deployed |
|---|---|---|
| Post-discovery completion | Full factual record on table | Default position for most cases |
| Pre-expert disclosure | Avoid expert investment cost | Clear-liability cases with damages dispute |
| Post-key depositions | Capture deposition-shaping leverage | After plaintiff or key defendant deposition |
| Pre-summary judgment | Settle before motion creates winners/losers | When both sides face genuine motion risk |
| Post-summary judgment | Capture renewed settlement pressure | When motion denied, raises defense exposure |
| Pre-trial | Trial-approach pressure peaks | Weeks before trial date |
| Mid-trial | Last-chance resolution | When trial revelations shift positions |
Mediator selection for litigation cases #
Mediator selection considerations:
Litigation experience. Mediators with litigation experience understand the dynamics.
Reputation. Established reputation among personal injury counsel.
Insurance familiarity. Familiarity with insurance industry practices.
Trial experience. Mediators with trial experience often have credibility about trial risks.
Style match. Mediators use different styles. Selection matches style to case dynamics.
Cost considerations. Daily rates vary substantially.
Availability. Practical scheduling considerations.
Mutual selection. Both sides must agree to the mediator.
Mediation preparation in litigation #
Preparation requirements:
Mediation statement. Comprehensive submission to mediator outlining case theory, key evidence, and damages.
Confidential statement. Many mediators prefer confidential statements not shared with opposing party.
Documentation organization. Key documents organized for reference during mediation.
Demonstrative exhibits. Same demonstratives that would be used at trial.
Damage calculations. Detailed damage calculations with supporting documentation.
Negotiating range. Clear preparation of opening positions, target outcomes, and walking-away points.
Client preparation. Client prepared for mediation process and possible outcomes.
Authority confirmation. Confirming opposing side will have settlement authority.
The litigation-stage mediation process #
Mediation typically follows patterns:
Joint opening session. Both sides present positions, sometimes including expert demonstratives.
Separate caucuses. Mediator meets with each side separately, exploring positions and identifying movement possibilities.
Shuttle diplomacy. Mediator moves between sides, conveying positions and exploring solutions.
Reality testing. Mediator challenges each side’s positions, identifying weaknesses and strengths.
Movement encouragement. Mediator encourages incremental movement.
Pressure building. As mediation extends, pressure to settle builds for both sides.
Final positions. Each side reaches final positions, with settlement or impasse following.
Documentation. When settlement reached, written agreement signed before parties depart.
Plaintiff strategy at mediation #
Plaintiff considerations:
Opening position. Initial demand should be supportable but provide negotiating room.
Justification for movement. Each adjustment justified with new information or explicit recognition of negotiating dynamics.
Real walk-away. Genuine willingness to continue litigation if mediation fails maintains leverage.
Client emotional management. Plaintiff emotional state through mediation requires attention.
Counsel demonstration of preparation. Visible thorough preparation supports plaintiff position.
Defense pressure recognition. Recognizing when defense is genuinely pushing limits.
Settlement opportunity recognition. Recognizing genuine settlement opportunities versus tactical positioning.
Defense strategy at mediation #
Defense considerations from plaintiff perspective:
Authority assessment. Determining whether defense representative has adequate authority.
Carrier dynamics. Understanding how carrier internal dynamics affect mediation.
Reserve information. Defense may signal reserves through opening positions.
Risk acknowledgment. Defense acknowledgment of case risks supports plaintiff position.
Cost considerations. Defense litigation costs increase as case progresses, supporting settlement.
Coverage limit considerations. Coverage limits may cap potential settlement.
Coordination with insured. When excess exposure exists, insured involvement may be necessary.
Substantive negotiation patterns #
Negotiation follows recognizable patterns:
Initial wide gap. Opening positions usually far apart.
Incremental movement. Each round produces smaller movement than the last.
Bracketing. Both sides may signal ranges rather than specific numbers.
Bracket convergence. Bracket overlap may signal settlement range.
Last best offer. Final positions presented as last offers.
Mediator’s proposal. Mediator may propose specific settlement amount.
Acceptance or rejection. Each side accepts or rejects, with settlement following acceptance.
Mediator’s proposal #
When direct negotiation stalls, mediator’s proposal:
Confidential proposal. Mediator proposes specific amount confidentially to each side.
Yes/no response. Each side responds with confidential yes or no.
Both yes. Settlement at proposed amount.
Either no. No settlement; mediator may propose alternative approaches.
Strategic implications. Mediator’s proposal can break deadlock when direct negotiation fails.
Acceptance considerations. Each side considers proposal seriously to capture potential settlement.
When mediation produces partial agreement #
Some mediations produce partial results:
Specific defendant settlement. Some defendants settle while case continues against others.
Conditional settlement. Settlement subject to specific conditions.
Framework agreement. Agreement on framework with details to be worked out.
Continued negotiation post-mediation. Some cases continue negotiating after mediation with the mediator as continuing facilitator.
Second mediation. Some cases benefit from second mediation after additional case development.
Settlement structure at mediation #
Settlement structures negotiated:
Lump sum versus structured. Method of payment.
Confidentiality terms. Scope of any confidentiality provisions.
Release terms. Specific release language.
Lien resolution. Provisions addressing medical liens, government subrogation, and other liens.
Future medical provisions. Where applicable, future medical care provisions.
Tax treatment. Tax treatment of settlement components.
Government benefits coordination. Medicare set-asides and other government benefits provisions.
When mediation fails #
Failed mediations don’t end the case:
Continued litigation. Case proceeds to trial preparation.
Renewed settlement opportunities. Future settlement opportunities remain available.
Failed mediation lessons. What was learned at mediation informs continued case preparation.
Court relationship. Court orders may require renewed mediation effort.
Cost accumulation. Continued litigation costs increase pressure for eventual settlement.
Reputation considerations. Mediation conduct affects counsel reputation with mediators and opposing counsel.
Multi-party mediation dynamics #
Mediation with multiple defendants:
Joint or separate sessions. Decision whether to mediate jointly or separately.
Apportionment discussions. How defendants will allocate liability among themselves.
Sequential negotiations. Some defendants may settle before others.
Mediator’s role. Mediator must manage multiple party dynamics.
Information sharing. Carefully managed information sharing among defendants.
Coordination among defendants. Defendants may coordinate or compete for settlement allocation.
Mediation costs #
Mediation costs in litigation:
Mediator fees. Typically split between parties. Daily rates vary by mediator.
Preparation time. Counsel preparation time substantial.
Venue costs. When mediation occurs at neutral location.
Travel costs. For out-of-town mediation.
Comparative cost. Mediation costs run far below continued litigation costs.
Cost allocation. Each party bears its own preparation costs while sharing mediator fees.
Why mediation works better mid-litigation #
Mediation during litigation can resolve cases that earlier mediation could not. The case development through discovery, depositions, and motion practice provides both sides with information that earlier mediation lacked. Both sides have invested enough in litigation to understand the costs of continuing. The trial-approach pressure concentrates risk for both sides. When these factors combine with skilled mediation, cases that seemed irreconcilable often settle. The investment in proper mediation preparation, even after substantial litigation, often returns more than equivalent investment in continued trial preparation.
This article is for informational purposes only and does not constitute legal advice. Personal injury cases turn on specific facts and applicable law that vary by case. If you have been injured in Georgia and want to understand your legal options, consult a licensed Georgia personal injury attorney.