Negotiating Terms for Unknowns: Contingent Agreements, Escalation Clauses, and Triggers
One of the hardest moments in mediation comes when everyone in the room agrees on most of the deal—but not on the future. “What if the other claim/lawsuit isn’t successful?” “What if someone objects?” “What if the regulations change?” “What if the lien can’t be resolved?" These aren’t side issues. In many modern disputes—business, insurance, bankruptcy, construction, environmental—the unknowns are the case. And when lawyers treat uncertainty as something to be resolved rather
Designing the Process: Creative Mediation Formats
One of the most underutilized tools in mediation is not a caucus room, a whiteboard, or even a mediator’s evaluative insight. It is the design of the process itself. Many mediations still follow a default script: joint session, opening remarks, immediate separation, shuttle negotiations, and a long day spent bargaining positions. In complex, high-stakes, or emotionally charged matters, effective mediation depends on intentional design. When phases, timing, and information exc
