In this article, the authors, both full-time neutrals, share success strategies to help civil litigation practitioners, insurance professionals, and in-house counsel with the mediation of higher-value, complex litigation, particularly as it pertains to construction claims. We address helpful tips to avoid common pitfalls and gear each stage of mediation towards a satisfactory conclusion, including pre-mediation, during mediation, and concluding with mediator’s proposals – so that you can make the most of the mediation process.
I. Resolution Starts Pre-mediation
A. Pre-Mediation Preparation and Call
Good attorneys know that frequently mediation work must begin many days, if not weeks, before the mediation event to explore with the mediator the key issues that need to be addressed in advance. The mediator may convene a pre-mediation planning call with counsel jointly or separately (often via Zoom) to discuss a mediation plan for the case. Jointly, the mediator can help the parties focus on issues to make the mediation session more efficient, such as identifying all decision makers, the exchange of expert reports and key documents that support or rebut the claims, and identifying implicated insurance policies. Separately, the mediator can address in advance private concerns that may impact the direction of the mediation, such as precedent for other matters or funding obstacles.
B. Confidential and Non-Confidential Mediation Briefs
Mediation briefs that provide a thoughtful, complete, and honest assessment of the case set the stage for success, especially if they are non-confidential and exchanged with the other side. Ideally, mediation briefs are exchanged with sufficient time in advance of mediation so the mediator can react and, if necessary, follow up with all parties regarding supplemental information to exchange before mediation.
Sometimes there are issues that counsel do not want to place in a non-confidential mediation brief, yet that still clearly impact settlement, such as funding concerns or conflicting testimony. In that case, a confidential brief can be submitted for the mediator’s eyes only. Generally, the more the mediator knows about each party’s goals and concerns, the better the mediator is able to guide all parties to a successful resolution.
C. Essential Mediation Participants
One source of frustration for practitioners experienced in the settlement process is when their client is willing to compromise. There is good back-and-forth negotiation, but then you get the 4 p.m. surprise as one of the other counsel announces they cannot do the settlement without a contribution from a third-party or fourth-party defendant who is not present. This frequently comes in the context of insurance where the claims representative asks why a potential indemnitor is not present. This is a perfect example of information that is best shared during an honest and thorough pre-mediation discussion.
D. Insurance Ramifications
The funding of complex litigation, and particularly construction litigation, often implicates one or more insurance programs. Effective construction mediators thus should have a deep understanding of insurance coverage. Often the authors have been told by counsel for one of the litigants words to the effect of: “I don’t deal with insurance issues.” While of course counsel should not put themselves in a conflict situation, the problem with avoiding insurance altogether is that many cases will not be resolved without addressing the insurer’s perspective. Without adequate information, insurance representatives cannot set reserves or otherwise get adequate authority for settlement. Pre-mediation is thus very helpful in ascertaining the identity of each of the implicated insurers, their respective limits, and any material policy exclusions or concerns of the claims professional that could impact settlement.
II. During the Mediation
A. Breakout Sessions
An important aspect of mediation is the breakout session when the mediator talks privately with only one-party or two-party representatives or counsel. This is a rare opportunity in the civil litigation world for appropriate and productive ex parte communications.
- Sometimes the mediator will meet with opposing counsel only (no client representatives) and gain insights that will help move the case towards settlement. Counsel may explain why one side or the other is entrenched in their position so the mediator can focus on what is keeping the party from progressing in mediation. Not every case can or should be settled, but we have found that practitioners with successful settlement track records generally welcome the opportunity to make the most of these private, candid communications.
- Solo breakout sessions can also be extremely productive. Counsel may have an opinion on the settlement range of the case or settlement target. From the mediator’s point of view, the more information the mediator has, the more likely he or she will help both parties reach a satisfactory resolution. Since mediation is a voluntary process between parties with frequently more than one representative participating, a breakout session helps the mediator “take the temperature of the room” to see what is driving certain participants to settle the case, or perhaps the motivation of others to resist settlement.
- Mediators may use the breakout session to meet separately with insurance carrier representatives and/or personal counsel. There may be information the insurance carrier wants the mediator to know that will assist in settling the case. Personal counsel may likewise have a separate perspective, either on the insurance picture or on the settlement dynamics in general. We have found that meeting with personal counsel can often unlock a key to settlement, such as identifying third parties with which the principal wants to maintain a good business relationship.
B. Joint Sessions
We do not espouse use of a joint session at the beginning of the case so that counsel can essentially give an opening statement. Unless opposing counsel invites such a statement, this is generally not helpful. But, during the mediation after the mediator has assessed each party’s position and identified participants -- who could be counsel, the party himself or herself, an expert witness, or even coverage counsel -- whom the mediator believes can be effective in speaking directly to the other party in a joint session, allowing the parties to speak directly to each other can provide powerful motivation towards achieving resolution. Joint sessions can be used to confirm areas of agreement, focus the parties on actual disputes, allow the parties to hear unfiltered strengths and weaknesses of the claim, undertake risk analysis to gauge the parties’ willingness to continue litigation, and provide opportunity to leverage relationships and take control of negotiations. Indeed, the joint session can be the place where relationships can trump legal positions, saving all parties tremendous time and resources. The success of a joint session depends on the personalities of the parties and the mediator setting proper objectives going into the joint session. In that way, we have found the joint session can often break an impasse and shorten the time to reach final resolution.
C. Additional Strategies
The number one key for successful mediation is robust negotiations between the parties. We have never seen a case settle in mediation when a party is missing critical information, whether that is the amount of damages, an insurance coverage issue, or a key legal argument that is not addressed to the participants’ satisfaction. Cases generally settle only after all parties have a threshold understanding of the strengths and weaknesses of each side. A productive strategy is joint expert meetings (usually via Zoom), which we recommend the mediator attend, especially when counsel encourages experts to look for compromise solutions.
It is also important for the parties and mediator to test the waters regarding the settlement range for the case; this is sometimes called the “settlement zone.” If both parties are outside the “settlement zone,” the mediator can step in with a technique called “bracketing,” defining what both parties and the mediator believe is a more realistic range for the case.
III. End of Mediation
A. Common Scenarios
At the end of productive mediation sessions, typically one of three things happens.
Most often, with robust negotiation and effective use of pre-mediation talks and breakout sessions, an agreement is reached.
Second, somewhat rarely, despite best efforts, one or more of the parties recognizes they do not have enough information and need further exchanges, at which point the mediator will work with the parties to streamline what is needed and reconvene at a more opportune date.
Or third, an increasingly common endpoint is that the parties move closer to resolution but need the mediator’s help to bridge the final gap. At this point, a mediator may employ a strategy known as “mediator’s proposal,” which we address below.
B. The Mediator’s Proposal
Mediator’s Proposal – What It Is and Why Effective: A mediator’s proposal, as used by the authors, is an endgame proposal by the neutral to bridge the final gap and offer a compromise settlement solution not yet articulated by the parties. A mediator’s proposal is not employed if one party is recalcitrant and not fully participating in the mediation process. Similarly, a mediator’s proposal is not employed if there are roadblocks to settlement that require further research and/or exchange of key information.
Mediator’s Proposal – When Effective: A mediator’s proposal is only used if both parties request it. The reason is that mediator’s proposals are extremely effective if both parties recognize that the mediator’s proposal is the very last step in the mediation. Importantly, this only occurs after the parties have employed all avenues for resolution discussed above in this article. Practitioners should avoid the temptation to jump to a mediator’s proposal before working diligently to resolve the case using traditional mediation techniques.
Mediator’s Proposal – How Effective: A few techniques make the mediator’s proposal particularly effective. Typically, the proposal is “double blind,” which means a party who rejects a mediator’s proposal will never know whether the other party accepted the proposal or not because that could give the party an unfair advantage in further negotiations. Also, a mediator’s proposal, with some exceptions, such as repeat litigants, is done in writing after the mediation ends, with a description of the reasons for the proposal, potentially including information exchanged before and during mediation, so that all parties and oftentimes insurance carriers have a full understanding of the rationale for the proposal.
C. Mediator’s Proposal – Impact of ABA Opinion 518?
On October 15, 2025, the American Bar Association’s (ABA) Standing Committee on Ethics and Professional Responsibility issued Formal Opinion 518, which addresses, in part, the responsibility of lawyers not to mislead when acting as a neutral third-party mediator. (ABA Press Release, October 15, 2025.) Potentially relevant to mediators’ proposals, Section II of the Opinion states: “A mediator may offer an opinion as to how a tribunal is likely to rule on an issue, but the lawyer-mediator should not state or imply that a settlement is in the party’s best interest because a tribunal is likely to decide adversely to the party. And Section III adds that it is improper, if untrue, to state that “this is the best offer the opposing party will make.”
The authors applaud the ABA’s caution to encourage guardrails on the attorney’s role as mediator. In the context of the mediator’s proposal, even when both (or all) parties request the neutral to issue a proposal, certainly he or she should not supplant the role of retained counsel by advising one side that certain settlement terms are in its best interest simply because of an anticipated ruling. That said, because high-value construction litigation (and higher-value complex litigation, generally) involves sophisticated legal representation, expert witnesses, and experienced insurance professionals, the mediator‘s proposal is inevitably strictly scrutinized by the stakeholders together with counsel to determine whether or not to accept or reject based on all the known factors. Likewise, as to “the best offer the opposing party will make,” of course a neutral should not misrepresent facts, whether to coerce settlement or otherwise. But in high-value complex litigation, this is again unlikely to be a concern. Often, the parties’ claims are competing with crossclaims, and the valuations of each side’s positions are vastly different, requiring the assistance of an experienced, qualified, neutral construction mediator to help the parties find a reasonable settlement taking into account all of the competing interests.
In short, the mediator’s proposal is a powerful tool the mediator uses to give an objective, unbiased, neutral evaluation that is desired by counsel, insurance claims representatives, and parties - not to supplant retained counsel’s advice on an anticipated verdict or other tribunal ruling - but rather to increase the likelihood for settlement before engaging in wildly expensive and protracted litigation.
IV. Conclusion
A successful endgame includes working closely with the mediator at all stages of mediation from pre-mediation, during mediation, in break-out sessions and joint caucuses, and finally, with the mediator’s proposal. By following these tips and avoiding mediation pitfalls, participants will greatly enhance the likelihood of resolution at mediation.
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*Gene M. Witkin, Esq. is a full-time neutral on the AAA panel. He has a career devoted to helping businesses, insurance companies, and individuals resolve disputes efficiently and out of court through mediation and ADR. In the context of construction disputes, Mr. Witkin handles all aspects of resolution for high-rise, commercial, and residential claims, as well as high-value insurance disputes, with availability in multiple states. E-mail: GWitkin.ADR@outlook.com
**Matthew W. Argue, Esq. has over 36 years of experience in complex construction litigation and, for the past 22 years, has served as a full-time construction mediator, arbitrator, special master, and discovery referee, with availability in multiple states. Mr. Argue mediates a wide variety of construction claims, public and private works, mixed-use, high-rise commercial and residential developments, and high-end luxury single-family homes. He is licensed in California, Nevada, Washington, Texas, and Colorado. E-mail: mattargue@onemediator.net