Full transcript

The complete session in writing, for anyone who would rather read than watch.

A CLE and CE presentation for Florida and Texas attorneys and Florida adjusters, delivered July 22, 2026 by Brandon S. Diamond, PhD, Florida Supreme Court Certified Circuit and County Court Mediator.

The recording above captures the live session as it was delivered on July 22, 2026. The written version below has been edited for readability and reflects my current framing on a few points, particularly around what can reliably be said about national settlement statistics. Where the two differ, the text is the more considered version.

I mostly mediate virtually, and I mediate cases throughout Florida and Texas. I concentrate on personal injury, liability, and first-party property, but I handle anything civil, with the exception of family cases. Even if you practice family law, most of what follows will still apply to you.

In this session I want to cover the key differences between mediation and arbitration, the strategic considerations involved in moving a dispute from litigation to ADR, best practices for preparing cases and clients, the common pitfalls that undermine ADR, and the ethical questions that lawyers and adjusters have to navigate along the way.

Why we mediate

Mediation is an attempt to reach an agreement that both sides can live with. It is voluntary and consensual, it is confidential, and when it produces a settlement it is faster and cheaper than court.

People often confuse mediation with arbitration, in part because a great many mediators are also arbitrators. The distinction matters. In mediation, the parties negotiate with each other to reach an agreement, which means there is no real winner or loser. In arbitration, the parties present their cases to an arbitrator who then decides, which usually does produce a winner and a loser.

The practical consequence is that parties tend to leave a mediation feeling better about their situation than when they arrived. The losing party in an arbitration generally does not. The trade-off is that mediation can end in impasse, whereas arbitration will produce a decision of some kind.

What we can and cannot know about settlement rates

I put two questions to the attendees during the session, and I want to handle the answers carefully, because reliable national numbers in this field are harder to come by than people assume.

Mediation is confidential. In several states, even the fact that a mediation took place is confidential. There is consequently no comprehensive national dataset on how many civil mediations settle, and I would treat any precise national figure with some suspicion unless the source is clear about what it actually measured.

What can be said with confidence is structural rather than statistical, and it is regional.

Florida sends nearly every civil case to mediation. Most states do not. That single fact shapes practice here more than almost anything else, and it is why Florida attorneys develop mediation instincts that do not transfer cleanly to other jurisdictions.

The poll made the point better than I could have. Most attendees were Florida practitioners, and most assumed the national court-referral rate looked like Florida’s. It does not. Florida is at one end of the distribution, not in the middle of it.

Many states have built their mediation rules on Florida’s, which is why the Texas qualification was a three-hour booster rather than a full program when I took it. Florida certification already covered most of the substance; what remained were the Texas-specific rules.

Mediation is becoming more common across the country generally.

Who benefits

The defendant saves time, money, and potentially a client relationship. The plaintiff gets repairs made or bills paid more quickly and with less risk.

Even when a case does not settle, the attorneys benefit. You will usually learn something about how the other side sees the case, and that knowledge often produces a settlement afterward. A mediation that ends without an agreement is not a wasted day.

What a mediator actually does for you

We act as a filter. Emotions in these cases can be raw, and a mediator keeps them from getting in the way of the negotiation. When I am in caucus, moving between two rooms, and someone says something genuinely rude about the other side, I will carry the message but not the rudeness.

That is not politeness for its own sake. The single most important thing a mediator does is calm tempers. Upset people do not make rational decisions. If I can get everyone calm, you are far more likely to get a good result, whether or not that result is a settlement. Rational decisions come from calm people, not angry ones.

We give negotiation advice. A mediator should not be telling you what to decide. But we handle these negotiations constantly, and a good mediator can tell you whether a particular move is likely to produce an impasse or keep things moving.

We point out problems in your case, to you. I once handled a personal injury matter where defense counsel was certain he had a slam dunk. He was working from a misunderstanding about a medical fact. I did not tell the plaintiff’s side anything about it. I told the defense attorney he was wrong about the medicine, and he immediately became open to negotiating, because his case was no longer a slam dunk.

When mediation can happen

Pre-suit. Mediating before suit avoids the cost of depositions and experts, which paradoxically makes settlement easier. When there are no accumulated expenses that have to be recovered, it is far easier to settle at a lower number.

Early in litigation. You still avoid most of the costs even if you cannot avoid all of them. The ABA Dispute Resolution Section has been pushing hard for earlier mediation for exactly this reason. If it does not settle, you can still take your depositions and retain your experts afterward.

Right up to the trial date. A late mediation can still beat leaving the matter to a jury, unless you are completely certain you will win — and nobody is completely certain they will win in front of a jury. I had a case settle so close to the trial date that the settlement conference ended with the parties working out who was going to tell the court they no longer needed to appear.

After trial has begun, if a judge orders it. Many Florida attorneys prefer to get mediation in early, so that when the judge raises it they can say it has already been tried.

How mediators get chosen

The most common pattern is that one attorney sends a list of five to ten mediators to the other, who either picks from that list or sends back a list of their own. Some larger companies and firms maintain a list of mediators they are willing to use. Most maintain a list of mediators they are not willing to use.

You may be able to persuade the other side to use a mediator they have never used before. You are unlikely to get them to use someone on their do-not-use list.

That said, refusing an entire list simply because opposing counsel proposed it is counterproductive and probably unethical. I have heard attorneys brag about doing this, even when they know and regularly work with people on the list. That is not a way to move a case forward.

The opposite error is also real. Do not blindly accept the first name on a list when you have no idea who the person is. A career plaintiff or defense attorney who still litigates and only mediates part-time may not be as neutral as you want. Some part-time mediators are excellent. Vet them either way.

I once had an attorney tell me they could not use me because their firm only uses in-house mediators. I would suggest that is indefensible. There is no way a mediator employed by one of the law firms in the suit can be unbiased.

Scheduling follows the same logic. Some mediators, including those of us at Salmon & Dulberg, publish an online calendar so you can agree on a date with the other side and simply book it. And it is equally improper to refuse a date solely because opposing counsel suggested it. Mediation is voluntary and consensual, and delay for its own sake hurts everyone, the clients most of all.

Preparing for a successful mediation

There are three steps, and I suspect you can guess the third: prepare, prepare, and prepare.

Much of what follows will sound obvious. I raise each item because I have watched people fail to do it.

Prepare yourself

Know whether an offer has already been made. This is especially a problem in larger firms, where a case is handed to a different attorney for the mediation. Be extremely careful about opening well above a previous demand or well below a previous offer.

This is the single most common thing I see torpedo a mediation that should have settled easily. In one week I had one mediation where the defense offered less than they had already offered in writing, and another where the plaintiff demanded more than they had already asked for in writing. Both impassed, because in each case opposing counsel said, in effect, this is bad faith and I am negotiating against myself. Almost always it turns out to be a mistake rather than a tactic — when I get the party into caucus, I find out they simply did not know about the earlier offer.

Know your target number, and make it realistic. Obviously the plaintiff wants the full amount and the defense would prefer to pay nothing.

Know your real authority limit. In principle someone in each room should be able to settle for the full demand. When the client is an individual sitting in the room, that is usually fine. When it is a corporation, we all understand the corporate representative has probably been given a figure. You should know what that figure is, and you should know whether you are permitted to call for more if you get close. You do not have to disclose any of this to anyone, but the attorney and the client both need to know it going in.

Know the details of the case. I have lost count of the number of times an attorney has arrived at a mediation and asked for time with the client in order to find out what the case is about. I once had an attorney stall for thirty minutes because that is when he had received the file — and he stalled by doing exactly what I said not to do, opening at a hundred and fifty thousand against a public adjuster estimate of a hundred thousand, then dropping to a hundred and forty, purely to buy himself time to read.

Know what information you still need. If you know in advance what questions you want answered, the mediator can help you get answers, which moves the negotiation along. A good mediator can also frame your questions as evidence that you are there in good faith, which moves it along further.

Know whether depositions have been taken. I once mediated a matter where the plaintiff’s attorney did not know his own client had admitted under oath to violating the terms of the contract. He kept saying he could not understand why the other side seemed so confident. I kept saying the word “deposition” until it landed.

Prepare your client

This matters most with a layperson and least with a professional corporate representative.

Make sure your client knows how long the day is likely to take, that they are expected to pay attention, and how you want them to dress. I had one Zoom mediation where the plaintiff arrived late, lying in bed, shirtless, vaping. His counsel was not happy about it. His counsel also had not warned him.

Make sure your client can actually use the videoconferencing software. I have watched people take thirty minutes to log into Zoom. A computer is always better than a phone. Have them install the software in advance and try signing in before the day.

Consider whether you need an interpreter. I have had cases where a party spoke no English and counsel spoke no Spanish, and we ended up scrambling. I have also had a case where both sides brought their own interpreter because neither trusted the other’s. That was overkill.

Prepare the mediator

Send a summary. Most mediators do not require one, but you probably do not want to be the side that did not send one when the other side did.

Here is the practical reason I like summaries: the numbers. If you are working through deductibles and estimates during your opening and you start listing figures, I will have to stop you so I can write them down. If I already have them, they are in my notes, and I never have to interrupt you.

Consider speaking with the mediator in advance. Most of us do not require it, and many of us will do it if asked. When people ask me, it is usually either because it is their first time working with me or because they think the case is unusually complicated. I am always willing to take those calls.

Decide how open to be. This is one of the trickier judgment calls, and it depends entirely on the mediator. Some mediators will genuinely help you strategize. Others will only carry numbers back and forth, which people usually call playing messenger. If you know the mediator and you trust them to keep your limits confidential, telling them your real authority can get you to a settlement faster. If they are only playing messenger, do not hand them that information, because it may end up in the other room.

Prepare opposing counsel

People forget this one, and it matters.

Does the other side have the facts you want them to have? I have seen a case where a serial claimant had not disclosed a prior open claim to his own attorney, and the case was dropped once it surfaced. Last month I had one where there had been a prior leak, with prior damage, in exactly the same spot, never repaired — and the plaintiff’s attorney did not know. If the defense attorney had told him before the mediation, there would have been no mediation at all, and everyone would have saved time and money.

And once more, because it is the most common cause of failure I see: know what negotiations have already occurred.

At the mediation

Say hello to the party on the other side. When an adjuster looks at a policyholder and says they are glad to meet them and look forward to working with them, the policyholder very often says thank you — because you are frequently the first human being from an insurance company they have ever spoken to. Until that moment the insurer is a faceless entity. Treating the other side as a person with real concerns humanizes your side, which makes them more willing to compromise.

Explain why you are not paying more, or not asking for less, and avoid or explain your technical terms. I have watched adjusters offer to rewrite an estimate on the spot. The number did not move much. The policyholders were satisfied anyway, because they felt they had been treated like people and that the figure was not arbitrary. If that is all it takes to settle a case, it costs nothing to do.

The four possible outcomes

Written settlement. What everyone is aiming for. You are done.

Partial settlement. You mostly see this with many parties, a genuinely complex case, or both.

Adjournment. You can run out of time, or need to stop and research something. If you continue by email afterward, include the mediator while the mediation remains open — and remember that you are still bound by confidentiality for as long as it is open, in every email and every conversation.

Impasse. People treat this as the worst case, and it does not have to be. Impasses can be constructive. You might impasse deliberately and settle by email two days later; a great many cases settle within two or three days of the mediation. I once saw an impasse in which it emerged that the plaintiff was suing the wrong party, and one side ended up helping the other work out what they actually needed to do. It was still an impasse. It was also a good day’s work.

If you impasse, keep the negotiation alive as long as you can. The mediation itself is confidential, but you now know where the other side was willing to go, and you can use that.

Two ethical dilemmas

I cannot give you answers to these. They are genuine ethics problems, and you should decide what you will do before you encounter them — not if, but when.

What do you do when you agree with the other side but lack the authority to give them what they are asking for? Can you persuade someone on your own side? Perhaps, if you have prepared well enough.

And what do you do in the reverse situation, when you agree with your side’s original assessment but have been told to get the case settled? Do you push your own client not to settle when they want to, or do you do what your client asks?

Virtual mediation

Since COVID, most mediations have gone virtual, though this varies regionally. In Florida the large majority are virtual. Some states have been slower, and some organizations do not permit virtual mediation at all.

I mediate mostly virtually, so you can guess where I land, but both sides deserve a hearing.

The advantages. There is no travel. I have conducted mediations where a party was hospitalized and able to join anyway; that mediation could not have happened otherwise, at least not then. For insurance carriers the cost savings are substantial, since a representative can attend two to four mediations in a day rather than driving four hours each way for one. Participation improves — you can get a CEO into a corporate mediation who is not in the same state as anyone else. I once ran a mediation with participants in Florida, Texas, Louisiana, and Mexico simultaneously, which would have been a scheduling nightmare in person and was straightforward over Zoom.

Nobody overhears anything, either. When Salmon & Dulberg had a physical office with eight conference rooms, you would have one mediation in rooms one and three and another in rooms two and four, and the people in room one would hear laughter from room two and get upset — about people who were not even in their case. Keeping people calm matters, and that does not keep people calm. In person, people also linger outside the wrong door on the way back from the restroom. None of that happens virtually.

Translated subtitles are a newer development I have been experimenting with on Zoom. I would not yet rely on the AI in place of an interpreter, but I do use it to confirm that the interpreter is translating accurately. I know enough Spanish to have caught people relaying half of what I said.

The disadvantages. The objection I hear most from attorneys is that body language is harder to read over video, and I cannot argue with that. It is a valid concern.

The technology gap is real, particularly with older parties who may take thirty minutes to get on and then cannot unmute. I have seen counsel send someone to an elderly client’s house, and I have seen counsel bring clients into the office so they can sit in the same room.

My own biggest frustration is distraction. I have had parties get up and walk away mid-session because they thought of something else they wanted to do, such as the dishes. I have seen it happen during my opening statement, which is aimed principally at the laypeople who do not know how mediation works.

Zoom fatigue is genuine, though mostly for long matters. A two or three hour mediation rarely produces it. A two or three day mediation is a different story.

AI mediators

I will be candid that I come down harder on the skeptical side, but the advantages are real.

An AI can take a large volume of documents into account at once and quickly, which humans cannot easily do. It can offer predictive analytics about what is fair based on prior mediations and settlements. It is, in a heavily qualified sense, less biased — qualified because the old rule still applies: garbage in, garbage out. A model trained on historical decisions will reproduce the patterns in those decisions, including the ones nobody intended to encode. This has been documented repeatedly in systems built to screen job applicants. Nothing about a system being automated makes it neutral, and you have to be careful about which one you are using.

The biggest advantage is cost. You would not use an AI mediator on a case worth several hundred thousand dollars. But you also would not spend a thousand dollars on a mediator to settle a thousand-dollar claim, which is why a number of small claims courts have begun paying for AI mediation subscriptions that litigants can use for free before coming to court.

The problems. As I said earlier, the most important thing a mediator does is calm people down. Good luck getting an AI to empathize. It can flatter. That is not the same thing.

There are privacy risks. The wrong system with the wrong settings will take what you told it in confidence and produce it in a different mediation as the basis for a decision. It has recently been pointed out to me that even where you can opt out of having your information used for training, the disclaimers often still assert ownership of your information — so you do not actually know what is being done with it. Be very careful about putting anything confidential into any AI system.

There is also accountability. If the mediation goes wrong and your mediator was an AI, who do you hold responsible? Who do you complain to? Does it care that it did a bad job?

The black box problem deserves a word. If you use Microsoft Word, you probably do not know how it was coded — but the people who wrote it do. With a large language model, that is not true even of the people who built it, because these systems are self-modifying. Once one is running, nobody knows precisely how it is reaching its conclusions, and you cannot get a straight answer by asking it. That is worth thinking about before you let one decide what happens next in your mediation.

And they hallucinate. These systems are averse to saying they do not know, so when they do not know they invent. That is not what you want in a mediation.

My own view is that the useful role for these tools is assistive rather than substitutive. On a complex matter with many parties and a large volume of facts, a mediator using AI to help track the record — while making the judgment calls and supplying the human component personally — is in a better position than either a mediator working unaided or a system working without a mediator. On a simple case the advantage is marginal. On a genuinely complicated one, I think it is substantial.

What to avoid

Do not arrive without authority. It looks bad, and it rarely produces a settlement. I understand that sometimes you have no choice because that is all you were given.

Avoid unrealistic expectations, and make sure your client’s expectations are realistic too. I have seen both laypeople and company representatives arrive with badly mistaken ideas about how the process works. Nobody should expect to get everything they want; that is not what a negotiation is. Two days before this session I had a call from a layperson about a condominium association matter who made it clear he was hiring me to tell the other side they were wrong and he was right. I declined the mediation and explained that he was looking for an attorney rather than a mediator.

Understand that the process takes time. I have watched people attending from work start complaining at the twenty-minute mark that it was taking too long, in a matter booked for two hours — because nobody had told them it would be two hours. I have had company representatives say it was taking too long after one hour.

Avoid overconfidence. One side or the other frequently believes they are plainly right and that any jury will agree. You never know what a jury will do. Be confident; do not be overconfident. A settlement is almost always better than going to court.

Avoid heightened emotions and personal attacks. In a matter about a business transaction or an insurance claim, the attorneys and the mediator should be working together to keep everyone calm. I have seen adjusters and company representatives get more worked up than the laypeople and start hurling insults. That is never helpful.

Do not ignore the why. Is money really the issue? Sometimes people want an apology. I am not going to pretend money is not involved — of course it is. But an apology will sometimes close the gap remarkably quickly. Work out what people actually want, and tell the mediator if you know.

And do not skip the preparation.

Questions from the session

If the opposing party said something useful to your case at mediation and you impassed, can you raise it on cross-examination?

No. Mediation is confidential, and nothing said in mediation can be brought up. You do know about it, so you can try to get them to say it again — but you cannot introduce what was said in the mediation.

One attendee correctly noted that a judge can order confidential material to come out. That is true, and it is a different situation from a lawyer using it on cross-examination.

Who has the final say about the resolution?

The parties. This goes back to the distinction between mediation and arbitration. An arbitrator makes decisions. A mediator brings the two sides to an agreement and helps them make their own decisions, but does not make decisions in their place.

What is the advantage of opening statements over having each side submit a memo, so the mediator already has the information?

A mediation statement to the mediator is confidential. If I receive one, I will not repeat any of it, but I arrive understanding the case.

An opening statement is doing something different: you are talking to the other side. Ordinarily an attorney cannot speak directly to the opposing party. During a mediation, you can. The purpose is to get the other side to understand that you have an actual reason for your position and are not being arbitrary.

One attendee added that an opening helps the plaintiff understand the case. I would go further — it helps everyone understand the case.

Is there a CME number for mediators?

In Florida, mediator CME requires no proof of that kind. You give the name of the program and who provided it. There is no number to issue.

Brandon S. Diamond, PhD is a Florida Supreme Court Certified Circuit and County Court Mediator and a Texas-trained mediator, mediating civil matters throughout Florida and Texas through the Salmon & Dulberg Dispute Resolution panel. Continuing education credit is available only for live attendance and not for viewing this recording.

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