During my years as a litigator, I became intimately familiar with the standard risks we routinely discuss with clients: the possibility that witness A might be more credible than witness B or that one expert’s testimony might carry more weight than another’s. These assessments, while challenging, at least make their way into our formal advice.
But there was one risk that consistently kept me awake at night—a risk brilliantly captured by financial adviser Carl Richards:
“Risk is what’s left over when you think you’ve thought of everything.”
This unseen risk terrified me because it represented the blind spots I couldn’t warn my clients about. It was the unknown variable, the unanticipated factor that could derail even the most meticulously prepared case.
The Mediation Advantage
This is where the true power of mediation reveals itself in ways many legal professionals and clients don’t fully appreciate.
Beyond the obvious benefits of potential settlement, mediation creates a structured environment for information exchange that doesn’t exist elsewhere in the litigation process. This exchange illuminates those dangerous blind spots before they can impact the outcome of your case.
If a settlement isn’t achieved after a well-conducted mediation, both parties walk away with a dramatically enhanced understanding of the opposition’s case, strategy, and perspective. The fog of uncertainty lifts.
Perhaps Richards’ quote could be rewritten for the post-mediation landscape:
“Risk is what’s left over when you AND your opponent think you’ve thought of everything.”
When both sides have shared their perspectives in a controlled, facilitated environment, the remaining unknowns are significantly diminished—and with them, so is your client’s exposure to unexpected outcomes.
As a litigator, what are the most challenging aspects of the job that keep you up at night?
#Mediation #Risk
