November 11, 2025
In commercial litigation, the path to resolution is rarely a straight line. While liability often dominates early-stage conversations, seasoned trial lawyers know that settlement hinges just as much—if not more—on how damages are presented. In complex business disputes, where the damages are multi-faceted, often abstract, and sometimes speculative, a poorly framed damages discussion can derail even the most promising negotiations. Damages are more than numbers. They are narrative. They represent a story of impact—lost opportunities, interrupted performance, breached expectations, and economic consequence. When we fail to tell that story in a cohesive and credible way, we miss the opportunity to anchor the other side—and the mediator—in the reality of what resolution actually means. The Power of Narrative and Credibility One of the most common missteps I see is the assumption that damages calculations speak for themselves. In reality, they require context. A lost profits claim isn’t just about revenue spreadsheets—it’s about the customer base that was lost, the market disruption that couldn’t be overcome, or the strategic opportunity that was derailed. This is why credibility in presentation is critical. The numbers must align with the facts and with one another. If your demand letter presents one set of calculations, your expert report another, and your mediation brief a third, you've created an opening for doubt—not just about the numbers, but about the strength of the case as a whole. Damages, like legal theories, need to evolve with discipline. A consistent and transparent methodology from the start of the case to the mediation table signals strength—even when the damages themselves are contested. Strategic Framing Over Tactical Demands When approaching a mediation, counsel should think beyond the question of how much and focus instead on how to frame value. This means coming prepared to discuss a range—not just a top-line ask. It’s rare in a commercial case that one number will resolve the matter. More often, the parties need to understand how a range of scenarios could play out—and what those risks are worth. By offering a well-reasoned valuation band (grounded in data, assumptions, and economic logic), parties create room for movement without appearing uncertain. This also gives the mediator flexibility to explore offers without triggering positional resistance. And when those assumptions are pressure-tested in caucus, the parties retain credibility—because they’ve already acknowledged complexity and risk. Expert Witnesses: Educators, Not Advocates Expert witnesses play a unique role in damage discussions—but only when their role is properly calibrated. In mediation, the objective isn’t to impress the mediator with technical sophistication; it’s to help all parties understand the economic landscape. That means experts should be prepared to educate, not dominate. The best experts I’ve worked with are those who can explain their models in plain English and help clarify—not complicate—the road to resolution. Their presence in mediation can be invaluable, especially when parties are struggling to reconcile valuations or understand key cost drivers. But they should support the conversation, not take it over. The Mediator’s Role in Testing Assumptions One of the most underutilized aspects of mediation is the neutral’s ability to help test damage models in real time. As a mediator, I’ve often helped parties reality-check their assumptions, stress-test their projections, and uncover unstated fears that might be inflating demands or suppressing offers. A productive mediation gives each party a confidential space to ask: What if I’m wrong? What if we don’t win on this issue? What if the court awards half of what we’re seeking? When lawyers and clients are willing to engage with those questions openly—even hypothetically—it becomes easier to see the value of resolution now versus the risk of trial later. Damages as a Conversation, Not a Contest At its best, a commercial mediation doesn’t just resolve numbers—it reframes value. When damages are approached strategically, presented credibly, and explained in a business-forward way, the settlement table becomes a place of possibility, not paralysis. At Schreiber ADR, I work with parties every day to bridge the gap between legal exposure and business reality—using mediation not just as a procedural step, but as a strategic tool for closure. If you're preparing for a complex commercial mediation and want to discuss strategies around damages, I’d welcome the opportunity to help.
