By Judge Layn R. Phillips, with Andra Greene and Clay Cogman

What is a “mega” mediation? Mega mediations are often defined by their numbers, but there is so much more to the story than the numbers. The structure, the constituencies, the changing players and counsel, the sometimes-overhanging threat of bankruptcy and the doom and gloom associated with macro factors such as war, inflation, and shifting cultural change. Of course, any mediation that results in a billion-dollar settlement (or hundreds of millions) gets attention. A multi-billion-dollar resolution not only becomes a headline; it also creates follow on story lines that sometimes take months if not years to play out. I have mediated many cases that have resulted in settlements in the billions or hundreds of millions of dollars. But the size of the settlement is only part of the equation in determining what makes a mega mediation.

The true challenge of mediating a mega case is not merely monetary scale. It is the complexity of the litigation ecosystem: the number of parties and competing agendas, the number of claims, the number of decision-makers and what drives them, outside pressures, and the degree to which the settlement must do more than simply end litigation. In the largest and most consequential disputes, settlement is not just a transaction. It is a structure, a process, and often a turning point in the life of a company, institution, family, public entity, or litigation program. In this article, I will discuss where mega cases arise, the challenges mega cases pose for participants, and the techniques I employ when mediating these cases.

 

Mega Settlements Across Practice Areas
For over thirty years, I have been involved in a wide range of complex, multi-party, high-stakes disputes. The following examples illustrate the breadth of matters that fall within the category of “mega mediations” that I have personally resolved. Some of my recent large-scale settlements demonstrate that mega cases arise in many different litigation settings, including mass torts, securities, bankruptcy, antitrust, copyright, employment, public entity litigation, environmental claims, and private family disputes involving substantial wealth.

Examples include:

Matter	Approximate Settlement Amount	Type of Case
In re AFFF Products Liability Litigation — Water Providers / 3M	$12.5 billion	Mass tort / products liability class
In re Purdue Pharma L.P. Bankruptcy	$6 billion	Bankruptcy estate allocation and settlement
Allianz Structured Alpha Direct Actions	$3.836 billion aggregate	Federal and state investor fraud actions
Petrobras	$3 billion aggregate	Federal securities class action
Wedding v. CalPERS	$2.76 billion	Long-term care class action
Bank of America / Merrill Lynch Acquisition	$2.425 billion	Federal securities class action
Bonneville Power Administration	$2 billion	Residential Water Exchange Program litigation
Household Financial / HSBC	$1.575 billion	Federal securities class action
Anthropic Authors Copyright Litigation	$1.5 billion	Federal copyright holders class action
United States v. UBS Securities LLC	$1.435 billion	Federal RMBS action
In re AFFF Products Liability Litigation — Water Providers / DuPont	$1.185 billion	Mass tort / products liability class
NCUA v. RBS	$1.1 billion	Federal RMBS action
Merck Vioxx	$1.1 billion	Federal securities class action
ARCP	$1.025 billion	Federal securities class action
In re Dell Technologies Inc. Class V Shareholders	$1 billion	Delaware Chancery stockholder class action
In re Wells Fargo & Company Securities Litigation	$1 billion	Federal securities class action
Private family disputes involving divorce and estates	Over $15 billion

As this chart illustrates, mega disputes do not belong to any single practice area. Although securities class actions and mass torts have historically produced many of the largest settlements, mega cases can arise wherever large damages, systemic conduct, recurring injuries, institutional risk, or enormous private wealth converge. Several of my colleagues at PADRE, including David Murphy, Miles Ruthberg, Greg Lindstrom and Greg Danilow, have resolved other mega cases. Greg Lindstrom, for example, resolved the National Association of Realtors Class Action for $1.1 billion in the aggregate, which has impacted the way real estate is sold in the US today.

 

What Makes a Case a “Mega Case”?
An obvious initial answer is money. Exposure, both reputationally and financially, drives attention, urgency, and risk. But dollars alone do not tell the whole story. A case may require “mega case” treatment even when the damages are lower than the headline billion-dollar cases. The degree of difficulty in reaching resolution may be driven by factors such as:

• the emotional burden carried by participants, including sexual abuse survivors or victims of catastrophic harm;
• numerous parties, insurers, indemnitors, and cross-claimants;
• revolving door C-suite moves by executives
• cartel, hub-and-spoke, or other multi-defendant antitrust structures;
• disasters or calamities that generate multiple wings of litigation (fires, crashes);
• regulatory overlap, including parallel DOJ, SEC, state attorney general, or agency proceedings;
• public scrutiny and reputational consequences;
• the need for a sophisticated claims process, allocation model, or long-term administration mechanism; and
• the risk that one settlement will set the standard for future cases.

Some examples of additional significant settlements involving such factors I have mediated include:

Matter	Approximate Settlement Amount	Type of Case
UnitedHealth Group	$985 million	Federal securities class action
AIG	$960 million	Federal securities class action
NFL Concussion Litigation	$950 million	MDL concussion litigation
Twitter	$809.5 million	Federal securities class action
Didi Global	$740 million	Federal securities class action
Walmart Consolidated Wage and Hour Class Litigation	$640 million	Federal employment class action
Norfolk Southern East Palestine Train Derailment	$600 million	Federal class action
Sutter Health	$575 million	State court antitrust class action
Larry Nassar Abuse Victims	$500 million	Abuse survivor claims
Zuffa / UFC Fighters Antitrust Class	$375 million	Antitrust class action
DOE / Rockwell / Dow Rocky Flats	$375 million	Federal nuclear facility class action
RealPage Antitrust MDL	$350 million-plus, ongoing	Antitrust MDL
Apple Power Management Consumer Class	$310 million	Consumer class action
NTTA / Prairie Link Construction Litigation	$200 million	Construction litigation
Smithfield Pig Farm Nuisance Cases	$126 million	Consolidated Nuisance Trials

 

The Human and Institutional Challenges Presented by Mega Cases
Mega cases place enormous pressure on every participant in the mediation process. Outside counsel, in-house counsel, executives, insurers, lead plaintiffs, public officials, trustees, and sometimes judges are making decisions that may define careers and institutional legacies. Mega cases often create a “Jenga” effect. Pull one piece out, and the entire structure may shift or collapse.

For defendants, a billion-dollar liability can be a paradigm-shifting event. It may affect a company’s very existence, financial reporting, shareholder relations, reserves, insurance towers, regulatory posture, business and executive reputations, business strategy, and related litigation. In mass torts and public-facing cases, one settlement may be only one piece of a much larger puzzle.

For plaintiffs’ counsel, a mega settlement will be judged not only by the parties in the case, but by future claimants, competing counsel, objectors, courts, and the broader litigation market. The settlement may become a benchmark for later proceedings. It may also shape expectations in related cases that are not yet filed, not yet mature, or not yet valued.

For judges, mega cases present unusual case-management challenges. Courts must often balance settlement encouragement with fairness, transparency, notice, objections, allocation issues, staging of phases, fee requests, and ongoing administration. The court’s role, and that of the mediator, does not necessarily end when the parties reach agreement, as post-settlement disputes often arise.

 

Lessons for Mediating Mega Cases
While mega mediations are in some respects like other mediations, the high stakes and considerations discussed above explain why successful mega case mediation requires more than shuttle diplomacy.

1. Patience. Patience. Patience.
   The high stakes, legacy considerations, and cascading effects mean nothing will happen quickly. Expect a protracted process, not a quick-strike process, though there are sometimes exigencies, such as when the parties are in the throes of an acquisition or an injunctive proceeding. Prematurely forcing your own views or valuation, pushing parties into a range too quickly, or failing to provide sufficient process are all potential recipes for failure.
2. Do Your Research.
   Prepare as though you are mediating all defendants’ large exposures and ancillary pieces of the litigation. Seek to understand the demands on the business within and outside the litigation, as well as the pressures that exist in all plaintiff constituencies.
3. Front-Load Structural Design.
   It is never too early to think about structure, phasing, and administration. Mega cases involve not only enormous dollars, but also large claimant populations and varying types of injuries. Inevitably, there will not be enough dollars to compensate everyone fully, and injuries must therefore be valued and stratified. Opioids, AFFF, and asbestos cases are examples. Experts need time and data to make these difficult recommendations. Do not wait for agreement on the dollar debate before helping parties understand these realities.
4. Be Adaptable on Process.
   A good mediator works to ensure that parties are comfortable with the process. Do not overprescribe your own approach. Mega litigation is personal for many reasons. It is the parties’ process, not yours.
5. Establish Good Communication with the Judge While Respecting Confidentiality.
   Particularly when serving as a court-appointed settlement master, understanding the judge’s approach is valuable. Participants inevitably speculate about how the court will rule. Become a trusted sounding board while maintaining confidentiality.
6. Identify the Peacemakers and Cultivate Them.
   Large matters inevitably create challenges associated with diffused decision-making. Leadership groups on both sides typically include both hawks and doves. If the hawks dominate for too long, negotiations can stall. Invest the time necessary to build trust with those genuinely interested in resolution.
7. Anticipate the Call to the Boardroom.
   Make yourself available to decision-makers as a means of closing negotiations. They will often need to hear directly from the mediator. Be prepared for difficult conversations, as prior discussions may have been more filtered. Keep sugarcoating to a minimum.

 

To successfully mediate mega cases, you as a mediator must use the principles that work best for your style of mediation. For me, the following mediation principles are especially important in mega cases:

• The merits matter. Reality test at every turn. Issue written questions before the mediation to communicate that you know the case and expect the parties to know it equally well. Commit the parties to candor by asking and getting answers to those tough questions.
• The pre-mediation groundwork is critical. Schedule substantive briefing and meaningful pre-mediation calls well in advance.
• Set the location and format (in person, hybrid, or virtual) so that the mediation occurs on mutually agreed-upon ground and work hard in advance to have the right people attend.
• Consider distributing merits-driven questions privately to both sides, probing the potential soft spots and setting the stage for candid separate caucus discussions.
• Gaining and maintaining trust is critical. Emphasize confidentiality and have participants review and sign written confidentiality agreements in advance.
• Ask parties to submit term sheets before the mediation so that material non-monetary issues can be identified early.
• Structure matters. Begin with a joint session to establish ground rules and rapport, then utilize a mix of joint and separate caucus sessions.
• Keep predictions, expectations, and timetables realistic.
• God gave us two ears and one mouth for a reason. Be an active listener and demand the same from participants. Early alienation of a constituency by an evaluative remark should be avoided.
• Lay the appropriate groundwork before moving to brackets or mediator’s recommendations.
• Be alert to whether the right people are participating. Require attendance of key individuals if the process is suffering without them.

 

Mega Cases Lead to Mega Opening Demands
Mega cases often begin with highly inflated demands. I frequently find myself fighting the urge to react to these like John McEnroe at the 1981 Wimbledon Tournament after an in/out call went against him…YOU CANNOT BE SERIOUS!! Prepare defendants for this possibility and discuss how to respond constructively in the face of such demands. Stay with the process. Remember: Patience. Rome was not built in a day.

 

The Defense Can Take Many Shots on Goal — But It Only Takes One
Each litigation event carries risk. That may be the risk of value being reduced by a defense-friendly ruling, or the risk of increased exposure resulting from plaintiffs clearing a significant hurdle. Mega cases tend to be long and complex, and long and complex cases tend to involve extensive motion practice. The outcome of such motions can dramatically affect a case’s value. For example, class certification issues can be critical junctures in mega cases. Some cases go into class certification and never come out. Sometimes the defense takes so many unsuccessful shots that it is reminiscent of the Black Knight on the Bridge in Monty Python’s Holy Grail (“It’s only a flesh wound; it’s only a nick; I’ve had worse.”). But each shot on goal carries a risk worth discussing.

 

Insurance
Insurers are an important constituency in many mega cases. In securities litigation, large towers of insurers are often involved, even though they ultimately could be swamped by the tsunami size of the nature of the claim. But the amount they pay is frequently determined by complex coverage issues, which often require mediator attention. For example, in environmental disputes or product liability cases spanning many years, multiple towers may be implicated. It is critical to understand the insurance dynamics and if permitted establish direct communication with carriers both before, during and after the mediation. At PADRE, we have a dedicated insurance liaison whose role is to communicate with insurers and obtain a deep understanding of the issues affecting resolution.

 

Mega Cases Are Typically Expert-Intensive: Damages Discipline Matters
High-exposure cases cannot be mediated effectively based on guesswork. The larger the case, the more important disciplined damages analysis becomes.

In mass tort and injury-based cases, the parties and mediator must focus carefully on injury categories, causation, proof problems, bellwether results, science, epidemiology, claims data, and the likely distribution of outcomes. In securities cases, damages models, loss causation, class definition, class certification risk, inflation maintenance theories, trading data, and appellate risk may drive value. In antitrust cases, overcharge models, pass-through issues, market definition, class certification, and regulatory findings may be central. In patent cases, validity and infringement disputes, reasonable royalty assertions, lost profits claims, apportionment, licensing models and incremental value assumptions are critical to valuation.

Each side will have its own experts, and their analyses are often strikingly different. I employ a number of techniques to help parties pressure-test expert analyses and identify areas of potential common ground. Examples include hot-tubbing of experts on damages, expert-only meetings with the mediator, and expert presentations to the opposing side. In some mega cases, the parties have authorized, and paid for, an independent expert selected by the mediator to assist in the process.

 

Keeping Negotiations Moving Through Impasse
In a mega mediation, periods of impasse are inevitable. There are many tools available to keep negotiations moving, including:

• Brackets
• Interim negotiating ranges
• Working on non-monetary terms and structure
• Mediator’s recommendations
• Asking the Court (with the consent of the parties) for expedited rulings

 

Mediator’s Recommendations
Most mega cases settle in whole or in part through some form of mediator’s recommendation at some point in the process 1. I employ mediator’s recommendations after a robust arm’s-length negotiation process that has resulted in an impasse, often when the parties are suffering from litigation fatigue. The recommendation is not necessarily intended as a statement regarding my personal view of the value of the case or what is in either party’s best interest. Rather, after hearing privately from each side, it reflects what I believe could be agreeable to both sides after consultation with counsel. On the other hand, it is often the case that our reality-testing, merits-driven separate caucus sessions leave little doubt as to what the mediator is suggesting is in a party’s best interest.

When I use mediator’s recommendations for a numerical amount, I do so on a double-blind basis. Each party confidentially informs me whether it accepts or rejects the recommendation. If both sides accept, there is agreement. If one side accepts and the other rejects (or both sides reject), I announce only that the parties rejected the recommendation. The rejecting party does not learn whether the other side accepted or rejected.

Mediator’s recommendations often include more than monetary terms. Common components include payment structure, payment timing, class definition, scope of release, cost allocation, and dispute resolution procedures. Because the recommendation does not address every material term, I typically include a provision stating that nothing is agreed upon until everything is agreed upon.

Even a rejected mediator’s recommendation can move negotiations forward. Under my double-blind protocol, a counterproposal is deemed a rejection, but then promptly communicated to the opposing side. The existence of a counterproposal can sometimes restart negotiations.

 

The Med-Arb Phenomenon in Mega Cases
Recently, I have seen what I describe as the “Med-Arb Phenomenon” in mega cases. Sometimes, after extensive mediation, the parties in non-class cases have narrowed the monetary gap but cannot close it entirely. They therefore sign a term sheet containing all the material terms, while agreeing that the monetary component will be decided by the designated neutral (often the mediator) in a final, binding arbitration proceeding. The parties agree in advance on the process — either a specified range decision or a baseball-style arbitration.

 

Just When You Thought It Was Over: Always Be Closing
Reaching an agreement in principle by whatever means – a handshake, a signed term sheet – is not the end of the story. Strive for a binding term sheet with an ADR protocol for disputes. But even when that document is signed, the mega case is not necessarily over. There is the long form settlement agreement, trial court approval and fending off objectors at the appellate level. Stories abound about famous cases being stalled out at the trial court while the trial judge “blue lines” certain aspects of the settlement (NFL Concussion Cases, High-Tech Employees Antitrust poaching cases, Bankrate). And of course, with the stroke of a pen, the appellate court can undo the work of years. The Purdue Bankruptcy decision is a recent example.

 

Conclusion
Mega mediations are often discussed in terms of dollars, headlines, and scale. But in my experience, the defining feature of these cases is not simply the amount at stake. It is the complexity of the human, institutional, financial, and legal dynamics that surround them.

The mediator’s role in these matters is not merely to move numbers. It is to build a process that allows parties facing enormous risk, uncertainty, and pressure to make difficult decisions in a disciplined and informed way. That requires preparation, patience, credibility, persistence, and trust.

While every mega case is different, one principle remains constant: resolution rarely comes from a single dramatic moment. More often, it comes from a long series of incremental steps that gradually move parties from entrenched positions toward practical solutions. The larger the case, the more true that becomes.

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1. Recently the ABA issued ABA Formal Opinion 518 discussing the mediator’s role. There is a good-faith difference of opinion regarding the scope of that opinion. However, ABA Formal Opinion 518 does not limit the use of mediator’s recommendations. It provides that the lawyer-mediator should not state that they are acting to achieve a party’s best interest or that a proposed settlement is in a party’s best interest.