Back to Basics in 2026

In this age of AI and virtual attendance, it might be time to reflect on what works and has been working for our 3000-plus year-old profession of peacemaking. Despite the advances in tools we utilize, human nature remains unchanged and getting people to a deal is fundamentally the same. Likewise, even with all the platforms to enhance our marketability as mediators, the choice is still made by those who engage us based on trustworthiness and word of mouth. You are only as good as your last mediation some say. Working a case as a neutral is no different in our digital world when it comes down to the basics. Understanding the nub of a dispute is key and recognizing the usual cast of characters to gain rapport with them and get to the signed settlement agreement is paramount in any negotiation, whether virtual or in person. Mediators have more information available to them in this day and age, but that gut feeling from experience and the ability to stay versatile cannot be substituted with artificial intelligence. Parties also have more data than ever, but are seemingly providing less information on the way into a conference than they once did. Having to dig through a docket as a neutral to gain an understanding of the underlying case is fine, but we would still appreciate learning the parties’ positions identifying any overlap in interests from briefs or summaries which might be of better use if exchanged in advance. Saving things for trial went away long ago because there really are so few trials that if a party has a smoking gun, etc., they need to leverage it during the settlement negotiation. Confidentiality that mediation affords must be used to share information for properly evaluating cases in advance of the actual day so that proper authority can be obtained without last minute surprises. Most cases turn on risk tolerance and what a party is willing to do instead of going to court. The courts are where they lose control over the outcome. So even with the overlay of practice going into 2026 and all the coming tech glory, the essentials of getting to resolution endure.

Join us 10/30 as we reflect on 10 years!

Join us later this month on 10/30 at noon ET for a free CLE webinar as my esteemed colleague and I celebrate our 10th anniversary with ADR pioneers, Upchurch Watson White & Max Mediation Group. We thought we would share our combined wisdom gained from helping lawyers and participants of the process get to yes over the past decade. As the registration blast indicates, veteran circuit-civi mediators of the firm, Jeff Fleming and Lawrence Kolin, will take our attendees on a journey through a decade of lessons learned from serving as full-time professional neutrals, including: - How their perceptions of mediation have changed - Comparing Zoom with in-person mediations - Preparation and mediation summaries - Opening statement by the parties - Best timing for a mediation - How long mediations should last - Why some caucuses take so long - Using brackets effectively - Asynchronous negotiation - Managing expectations The Florida Bar has accredited this webinar for 1.0 hours of General Continuing Legal Education (CLE) and of course you may, as always, self-report Continuing Mediator Education (CME) credit to DRC. Register here-- https://us02web.zoom.us/webinar/register/WN_aMDTyUADSYG38xPgFZCGIg#/registration

Common Ground - Commercial Mediation

This month, I'm pleased to be featured in The Common Ground publication by the Alternative Dispute Resolution Section of the Florida Bar fall/winter issue. I have written about the the dynamics of mediating commercial litigation cases and the unique and different challenges of this type of mediation. Getting the proper parties to the table and adequate preparation of counsel and client are keys to success. I also explain the nuances of commercial mediation by discussing relationships, strategy, multi-party cases, impasse, mediated settlement agreements, and more. Most disputes result from the breakdown of a relationship. Commercial mediators are often able to ascertain the root of that breakdown. Just as in other types of cases, there are underlying relationship issues and while it is conventional wisdom to try and separate the personal from the business issues, it is often the interpersonal that needs to be overcome to get to a satisfactory resolution. For commercial litigation, the atmosphere at mediation should be more like negotiating a complex business deal than making closing arguments. Competitors may even end up becoming partners at the end. See the article along with the entire issue here-- bit.ly/ADR_FW23_CG

Free Online Mediation CLE/CME 3/18

Join us March 18th at 1:00 pm EST for Mediator’s Notebook = Attorney’s Toolbox, a free CLE/CME Webinar with 1.5 credits of CLE from The Florida Bar, but that's not all you'll gain by attending. Whether you are representing plaintiffs or defendants, you'll gain valuable insights on helping your mediator to put everyone's focus on the path to reasonable resolution. Attorneys can often help a mediator to assess what barriers to settlement may exist. We will address what pre-mediation preparation to consider. Additionally, we will cover laying the groundwork for ongoing discussions through messaging. It is often said a case is not worth a penny more than someone is willing to pay or a penny less than someone is willing to accept. We'll discuss how those most patient at mediation have the most to gain. More information and registration details here-- https://bit.ly/3toGkd3

Mediation Week 2021

October 17-23 is officially Mediation Week in Florida and elsewhere, marking the importance of dispute resolution as an effective substitute to litigation and the fact that mediation has continued virtually during the pandemic, allowing parties to resolve disputes without resorting to litigation in a system of very backed-up court dockets. Alternative Dispute Resolution (ADR) has been used by Florida courts for more than 30 years. I have been mediating lawsuits for over 20 years now and this past year and a half was the most seismic shift in our profession and the legal profession in general. Online Dispute Resolution (ODR) will now continue as an option following the pandemic through confidential sessions conducted remotely with widely available commerical off-the-shelf technology. More than 5,500 mediators are currently certified by the Florida Dispute Resolution Center. These professionals meet specific standards set by the Florida Supreme Court in the areas of county, family, circuit, dependency, and appellate mediation. In most cases, discerning counsel and their client parties select the mediator. However, a mediator may be appointed by the court when litigants are unable to select their own. Mediation week brings annual focus on ADR work and highlights how individuals, administrative agencies, and businesses can use mediation to develop efficient and customized solutions to conflicts. See more here-- https://bit.ly/3AU5XUt

A Decade of Orlando Mediator

Today marks 10 years since I began writing this blog to help keep the legal community abreast of the latest goings-on in mediation, arbitration and other forms of dispute resolution. In the interim, this blog has been recognized as an official ABA "Blawg" by the American Bar Association, voted as a finalist for The Expert Institute Best Legal Blog in the Legal News category and a current Top 10 Dispute Resolution Blog and Website to Follow on Feedspot.com. My first entry had to do with arbitration as a process being under attack and that remains true today. Some things that have changed are the remote nature of these processes, especially since the pandemic began. These changes have advanced the use of state of the art technology like Zoom, now comfortably utilized by professionals, parties and their counsel alike. My alternative dispute resolution practice has continually evolved since becoming certified in 2001 in Circuit-Civil mediation by the Florida Supreme Court and serving as a full-time neutral since 2010. In the last decade, I have handled resolutions of multi-party complex cases in state and federal trial courts. I also facilitated post-trial settlements with cases pending in the Fifth District Court of Appeal, where I was a member of the pilot program for appellate mediation that endured with the creation of an Appellate mediation certification, for which I was grandfathered. Since litigation costs have gone up, courts are extremely backlogged due to Covid and the economy remains tentative, early settlements continue to be favored in most matters. Pre-suit mediation is popular and can be effective if the parties have just enough information to evaluate their positions in the potential litigation. All in all mediation has never been more popular in Florida and other docket-culling measures like mandatory non-binding arbitration are on the rise. Thanks for your readership and paying attention to my musings about all things in modern-day peacemaking. Be well and stay healthy!

FL Courts Largely Remain Closed

Even with a falling case trend of recent Covid-19 statistics, the courts around the state are in phased reopening status, a daily snapshot of which can be found at the link at the end of this update. The Supreme Court of Florida's evolving Emergency Procedures orders have focused on increasing the resolution of cases by shifting as many of them as possible into a virtual environment with remote technology, and specifically "Alternative Dispute Resolution proceedings." This is good news for parties and their counsel who can't get to a jury just yet. Remember, some 98% of cases settle before trial. A few circuits have engaged in the limited pilot program of remote trials with mixed reviews. At present, all courts remain at either Phase 1 or 2 in this continuing pandemic. As a reminder, Phase 1 means in -person contact is inadvisable, court facilities are effectively closed to the public, and in-person proceedings are rare. Phase 2 encompasses limited in-person contact is authorized for certain purposes and/or requires use of protective measures. Phase 3 states in-person contact is more broadly authorized and protective measures are relaxed. Finally, one day (hopefully next year) we will get to Phase 4 when COVID-19 no longer presents a significant risk to public health and safety. In the meantime, call your mediator and get those pending matters settled! See more here in this updated color-coded guide-- Court Phased Opening Status

Order Curtails Courts in Florida, So Mediate!

The Chief Justice of the Supreme Court of Florida today ordered most in person legal proceedings in the state courts be suspended for a minimum of two weeks due to the COVID-19 virus. The order takes effect Monday. Local judges will use remote electronic means of conducting legal proceedings whenever possible. The order will be extended or modified as needed in the future and is subject to existing constitutional requirements. Under Florida's Constitution, the Chief Justice is the chief administrative officer of the state court system and can issue orders with statewide effect. This is the first time a limit on face-to-face proceedings has been ordered since Florida’s state courts system was unified by a constitutional amendment approved by voters in 1972. The court found these measures are needed because a public health emergency exists, requiring social distancing to reduce transmission of the Coronavirus which is now a pandemic. The order is designed to slow the spread of infectious disease by eliminating gatherings of the public such as jury duty and trials. However, mediation remains available to litigants in the absence of court proceedings and can be conducted by remote attendance or online dispute resolution (ODR), which my firm offers. We expect the business of dispute resolution will go on with the help of technology, allowing attendees the opportunity to participate without spreading infection. See more on our ODR options here-- https://tinyurl.com/twd4nl4 and the court's full order here-- https://tinyurl.com/wrt7hug

ADR Rules & Policy Vacancies

The Supreme Court of Florida's Committee on Alternative Dispute Resolution (ADR) Rules and Policy needs members. This is a powerful committee that recommends changes to existing rules and implements new ones via proposals submitted for oral argument following public comment. The Florida Dispute Resolution Center (DRC) is currently accepting applications for eight member appointments to the Committee on ADR Rules and Policy. Appointments are made by the Chief Justice of the Supreme Court of Florida based upon competence, specialized knowledge, experience in ADR processes, and a commitment to the time necessary to be an active contributor to the committee’s work. The committee consists of 17 volunteer members and may include mediation trainers, Florida Supreme Court certified mediators, arbitrators, trial court administrators, parenting coordinators, attorneys, and judges. Generally, members are appointed for staggered three-year terms. However, these terms will begin July 1, 2020, and end November 30, 2023. No member shall serve more than nine years. According to the official announcement, the committee provides the Florida Supreme Court with recommendations relating to ADR legislation, and all aspects of ADR policy and rules including, but not limited to, model ADR practices, mediator certification and renewal requirements, continuing education requirements, and mediation training program requirements. Letters of interest and current résumés may be submitted on or before April 10, 2020, to: Florida Dispute Resolution Center, Supreme Court Building, 500 S. Duval Street Tallahassee, Florida 32399 or fax (850) 922-9290 or DRCmail@flcourts.org See link here-- https://www.flcourts.org/Resources-Services/Alternative-Dispute-Resolution

Join us 8/28 for free CLE/CME on Design Thinking in Mediation

Join me and my new UWWM colleague, April Walker, for a free CLE Webinar at noon Wednesday, August 28, 2019. We will explore the application of design thinking to the mediation process in Florida. Those who like to go beyond the day-to-day of alternative dispute resolution and apply other rubrics to improve outcomes should attend this interesting program. The formal title is "Design Thinking Applied to Mediation: Taking Advantage of the Informal and Non-Adversarial Nature of the Mediation Process" and it will look at principles that are successfully employed in other disciplines. For over fifty years, creative problem-solving approach designers have used these techniques to create new values that are different and make a positive impact. We intend to offer some ideas in the problem-solving role of mediation and to encourage some innovation in the daily approach of settling lawsuits. This complimentary CLE is approved by the Florida Bar for 1.0 hour of general CLE credit. After registering, you will receive a confirmation email containing information about joining the webinar. https://register.gotowebinar.com/register/7035925939656754947

May Webinars at Noon 5/1 & 5/9

I'll be participating in two webinars you can attend during lunch at your desk next month on May 1st and May 9th. The first presentation is brought to you through The Florida Bar Alternative Dispute Resolution (ADR) Section and will provide an overview of the latest in Online Dispute Resolution (ODR). This live audio webcast will examine different emerging ODR processes that are currently available. We'll look at the benefits of using such processes, the technology used to implement those processes and the ethical issues presented when engaging in virtual or online mediation. The Florida Bar has approved the online program for 1.0 General / 1.0 Ethics / 1.0 Technology Continuing Legal Education (CLE) credits. Of course, certified mediators may also submit as Continuing Mediator Eduction (CME) credit to the Dispute Resolution Center (DRC) upon their renewal. As a bonus, if you are a member of our ADR Section, you qualify for a $10 discount on the $50 registration fee. The webcast will remain accessible for 90 days after purchase. I'm moderating a panel featuring my ADR Section colleagues Christy Foley of Winter Park and Natalie Paskiewicz of St. Petersburg. See more information here-- https://bit.ly/2GDA9dE Register here-- https://bit.ly/2XE3Hxt The second presentation is complimentary and focuses on techniques for closing gaps at mediation. Our program on the GoToWebinar platform will feature my firm colleagues Michelle Jernigan and Jeff Fleming. We will explore scenarios for getting to yes. The course is designed for any attorney who negotiates during mediation and wants to better understand what skilled mediators do to narrow gaps that develop or widen. The webinar will provide 1.0 General CLE hours from The Florida Bar and you can register here-- https://bit.ly/2KWuZh3

ADR Section Meeting Next Month in Orlando

The Florida Bar Alternative Dispute Resolution (ADR) Section mid-year meeting occurs January 17, 2019 in Orlando. Our Executive Council will be meeting in-person and all section members are invited to attend, as always. If members of the section have something specific to put on that agenda, please contact Stefanie Svisco, our Florida Bar Program Administrator in Tallahassee. At that time, our section also will be joining with The Florida Bar to produce a training program for mediating and arbitrating attorney grievances. Neutrals are always needed for this process so if you have a desire to get involved, come live to the training or find it online after the meeting and get involved in helping The Florida Bar address these situations. Another project underway next year is a request from the Florida Supreme Court’s Rules & Policy Committee for input from our section members on Mediator Ethics Advisory Committee (MEAC) opinions as well as the Ethical Rules for Certified and Court-Appointed Mediators. This is your opportunity to let the Rules & Policy Committee know which MEAC opinions should be reviewed and potentially revised. The rules form the foundation for MEAC opinions and analysis. Are there areas where the rules should be amended or clarified? The process of amending or making new rules in Florida requires advocates contact the relevant rules committee with suggestions for rule changes based on outcomes and decisions that the participants believe highlight areas of confusion or unintended consequences. Please take this opportunity to let us know. We will capture the comments on our website and submit them to the ADR Rules & Policy Committee as they begin the process of considering upcoming rule changes. We will begin accepting your submissions on the rules starting on February 1, 2019 with a cut-off of March 31, 2019. You will receive a separate email with the details for the submission after January 1, 2019. See more here-- https://bit.ly/2R81ECk

Meet the Mediator

Our mediation and arbitration firm, Upchurch Watson White & Max Mediation group, based in Central Florida with offices throughout the state, has been profiling our neutral panel members and this month is my turn: "Lawrence has a distinguished career in Alternative Dispute Resolution. He has been a professional neutral for sixteen years. In that capacity he has served as an arbitrator, mediator, and as a general magistrate. Through his bar association work he chaired the effort to modernize Florida Civil Procedure Rules to include E-Discovery. He has also been a member of the faculty at the Advanced Judicial College, Bench Bar conference, and The Masters Conference for Legal Professionals. You may have seen his articles in the Orange County Bar Association Briefs. He is also the author of the officially listed ABA Journal "Blawg" Orlando Mediator (www.abajournal.com/blawg/Orlando_Mediator). Lawrence is AV® rated and has been recognized as a Florida Trend Legal Elite in Arbitration & Mediation, selected as Mediator of the Month™ in Attorney at Law magazine, and identified as a SuperLawyer™. He serves on the Executive Council of The Florida Bar ADR Section (www.fladr.org). He was even named a Litigation Trailblazer and Pioneer™ by the National Law Journal for his innovative work in alternative dispute resolution practice. Needless to say, he has been a very welcome addition to UWWM’s panel of professional neutrals. He brings a scholarly and informed perspective to the firm and to his clients. Given his impressive resume, I thought it might be interesting to discover something about Lawrence that we didn’t know." Aw-shucks! Read my colleague's interview of me here-- http://www.uww-adr.com/Meet-Our-Mediators--Lawrence-Kolin-1-817.html

Orlando Mediator Named NLJ Trailblazer

I'm pleased to announce that I've been named as one of only 50 attorneys to be honored as The National Law Journal’s 2015 Litigation Trailblazers. I'll be accepting this award at the inaugural reception of all distinguished recipients in New York City next week. “The National Law Journal proudly recognizes the people who have truly ‘moved the needle’ in facilitating the changing ways that law firms conduct business,” says Kenneth A. Gary, the journal’s vice president and group publisher. “Whether it be technological developments, operational efficiencies, marketing and business development breakthroughs or research – we think this list embodies the spirit that will shepherd and shape modern law firms as a business going into 2016 and beyond.” Only in their second year, the litigation awards recognize top legal professionals who have promoted significant change in the way cases are resolved, using inventive techniques or technologies, bringing unique types of cases to court, or executing novel approaches, according to ALM Media Publisher Tom Larranaga. “They have raised the bar in several meaningful ways and are establishing important new standards as the legal landscape continues to evolve,” he said. Winners last year included David Boies, one of Time magazine’s 100 Most Influential People in 2010, and Ted Olson, who was Boies’ opposing counsel in the Supreme Court case Bush v. Gore and a former U.S. solicitor general. This year’s group includes Barry Richard, also of the 2000 presidential election case, and famed national trial lawyer Billy Gunn. I attribute this win to chairing of pioneering efforts to modernize Florida’s civil procedure rules to include electronically stored information and to my innovative work in ADR, specifically promoting the use of E-Neutrals through this blog and other legal publications. My colleague at Upchurch Watson White & Max Mediation Group, Richard Lord, remarked it is "a great honor reflecting Lawrence Kolin’s serious, deliberate and long-term experience and thought leadership in ADR.” See this week's special Litigation Trailblazer publication from The National Law Journal here-- http://pdfserver.amlaw.com/nlj/flipbook/Litigation_TP2015/Litigation_TP2015.html and a full list of all 2015 Trailblazer & Pioneer category winners here-- https://www.eiseverywhere.com/ehome/150001/342183/ Thanks for your continuing support and readership!

Water Wars

A settlement in an ongoing 25-year water war between Florida and Georgia has not yet been attained, but a move towards compromise was just announced. Special master, Ralph Lancaster, who was previously appointed by the U.S. Supreme Court to help resolve the dispute, said he was delighted to see both the word ‘settlement’ and the word ‘mediator’ in recent status reports, indicating a move to the formal ADR process of mediation. Lancaster already urged attorneys for each state to settle the water wars case amongst themselves, rather than risk an unsatisfactory outcome for all involved. Georgia's Governor set aside $20 million for the latest legal battle pitting Florida’s ailing oyster industry against Georgia’s right to use Chattahoochee River water across metro Atlanta. Florida states that Georgia’s overconsumption of water in the Apalachicola-Chattahoochee-Flint River Basin, which includes Lake Lanier, is creating economic hardship, particularly on the oyster industry in the Florida Panhandle region's Apalachicola Bay. Georgia also seeks to maintain full use of the Flint River and its tributaries for farmers in southwest Georgia. The rivers join at the Florida border, becoming the Apalachicola River. Crucial to Florida's seafood folks is a fresh water-salt water balance for oysters to survive in the Apalachicola Bay. While there's been no material progress on a global settlement since last summer, Georgia now reportedly believes the best way to advance the process is "to engage a mediator acceptable to both sides who can create a framework for formal in-person discussions and periodic exchanges of information specifically directed to settlement.” Florida apparently welcomed the suggestion, along with the special master. See news stories here-- http://on-ajc.com/1NcbBY7 and http://bit.ly/213eZsn

Media Prompts Sunshine Law Mediation

Florida's Governor and cabinet members will mediate their differences next week in Tallahassee with more than a dozen news outlets in a lawsuit accusing officials of violating Florida's Sunshine Law. The mediation postpones a scheduled videotaped deposition of the recently ousted commissioner of the Florida Department of Law Enforcement (FDLE). The sudden dismissal triggered the lawsuit, leading to a series of reforms designed to improve cabinet oversight of state agencies. Former FDLE Commissioner, Gerald Bailey, will likely repeat allegations of political interference by gubernatorial campaign staff and state officials who secretly arranged his ouster. Reportedly, news outlets will seek that high-level state officials post all text messages and emails on the state-run "Project Sunburst" website and to permanently prohibit state officials from using private email accounts to conduct public business. Media editors plan to attend the ironically confidential mediation session in the case on April 22, 2015. A former Florida Supreme Court justice has been brought in to mediate the lawsuit. Additional items up for negotiation are the adoption of policies to keep cabinet proceedings covered by the Sunshine Law, including a return to the recording and broadcasting aides' meetings. The parties will also discuss a prohibition on using liaisons or conduits to communicate about any official business. Finally, the suit seeks to void the appointment of Rick Swearingen, current head of the Florida Department of Law Enforcement, and to conduct a full and open process to appoint a permanent leader. Discussions are to include the formation of an Open Government Commission, similar to the Ethics Commission, with the power to investigate alleged Sunshine Law violations. As Justice Brandeis once quipped, "Sunlight is said to be the best of disinfectants." Read more here-- http://bit.ly/1bbuGsn and http://bit.ly/1b5ElQy and see http://www.flgov.com/sunburst

Orlando Mediator Lawrence Kolin Joins Upchurch Watson White & Max

Just a moment of personal privilege-- I'm pleased to announce moving my dispute resolution practice to Upchurch Watson White & Max, a nationally leading mediation firm known for facilitating reasonable agreements to resolve complex civil litigation. As a UWWM neutral panelist in Florida in exclusive practice in Alternative Dispute Resolution, I'll continue to offer my wide-ranging experience in settling disputes, including serving as a Mediator, Arbitrator, E-Neutral and Special Master. In this role, I'll keep writing on implementing innovative methods of ADR to resolve cases, such as Early Neutral Evaluation of lawsuits. You can also get the latest trends on this, my officially ABA listed "Blawg." For more complete information and to schedule, see-- http://www.uww-adr.com/biography/lawrence-h-kolin (800) 863-1462 For the press release regarding my joining this prestigious group of dispute resolvers, see-- http://www.prweb.com/releases/mediator/lawrence_kolin/prweb12283619.htm

Ten Years Later: Florida Mediation Privilege

Success of mediation surely rests with confidentiality, allowing parties to share information, solve issues, build trust, and self-determine whether to resolve a dispute-- all without fear of subsequent disclosure of candid statements shared during the conference. A decade ago, Florida amended Chapter 44, Florida Statutes to create the Mediation Confidentiality and Privilege Act, § 44.401 et seq. Prior to 2004, it was unclear to what extent any privilege applied and when it could be asserted. Under the Act, all mediations, including both court-ordered and other types (like pre-suit and voluntary) were granted confidentiality protections. This made all mediation communications confidential and applies to all mediation participants. The use of mediation has grown significantly in Florida since these protections were codified. The assurance of confidentiality continues to be essential to the integrity and success of mediation. It still encourages candor between the parties and on the part of the mediator. In order for cases to have a chance of settling, the parties must have faith in the fundamental elements of neutrality and confidentiality with limited exceptions to the privilege outlined here-- http://www.flsenate.gov/Laws/Statutes/2014/44.405

FL Supreme Court Limits Senior Judge Mediators

Twenty years ago, the Supreme Court of Florida authorized senior judges to serve as mediators in a new Code of Judicial Conduct, despite concerns about the propriety of a senior judge acting as both a mediator and an assigned senior judge. Last month, following proposed amendments published for comment that would have prohibited dual service, the court again decided to allow senior judges to continue to serve as mediators in light of significant opposition to the proposed prohibition. However, the Court chose to add new limiting provisions, such that Senior judges are now prohibited from serving as a mediator in any case in a judicial circuit where they preside as a judge. Additionally, mediation firms affiliated with judges are required to follow the same prohibitions on advertising and promotion that are imposed on judges. A potential exists that senior judges serving as paid mediators could be seen as exploiting their judicial position or lending the prestige of judicial office to advance the private interests of a judge or a mediation firm with which that judge may associate, or otherwise running afoul of the Code of Conduct. These amendments to the Code of Judicial Conduct, Rules for Certified and Court Appointed Mediators, Florida Rules of Civil Procedure, Rules of Judicial Administration, Rules of Juvenile Procedure, and the Florida Family Law Rules become effective on October 1, 2014 and are seen as additional safeguards to further alleviate the concern that dual service inappropriately creates an advantage in generating mediation business. See full opinion here-- http://www.floridasupremecourt.org/decisions/2014/sc13-1732.pdf

Settling ESI disputes with Mediators

Now that we are more than a year into Florida's E-Discovery rules, disputes over electronically stored information are coming to a head. E-neutrals or mediators specializing in complex cases involving electronic evidence can shape discovery plans, allocate costs and suggest and create efficiencies. The mediation process may focus the confidential conference solely on managing ESI, or the neutral may broaden the discussion, reminding parties of the merits and perhaps dissuading them from merely using E-discovery as a sword or shield. Mediation is an avenue that can present parties with significant cost-savings in ESI cases, if performed early enough in the litigation. For example, though counsel are urged to reach a rational agreement on what must be preserved, taking into account costs and burdens incurred by modifying or suspending document retention systems can be difficult. Implementing even narrowly tailored litigation holds to preserve crucial ESI can be difficult without the assistance of an e-neutral during negotiations. Under the safeguards of a confidential mediation, limited discovery from custodians or other key persons with special knowledge of a company’s computer systems may be particularly useful. Lawyers can then self-determine sources from which relevant information is to be obtained, while the neutral facilitates agreement on the time-frame at issue, search protocols, accessibility of stored information or the cost and burden of restoring inaccessible information. An e-neutral, mediator or special magistrate can also facilitate the electronic discovery process by helping parties to agree on the form in which they want information produced and the extent to which metadata will be produced. Mediation can feature caucuses with experts or IT liaisons that may help conduct discovery proportionally, minimizing motion practice, and avoiding unpredictable judicial outcomes on IT and ESI. Cooperation under this rubric may also encompass settling procedures to be followed when discovering privileged information that has been inadvertently produced in the course of discovery, including clawback agreements or agreed confidentiality orders. If the parties reach an agreement, they may ask the court to include the agreement in their scheduling order.