In his epic song “The Gambler” Kenny Rogers advises “You got to know when to hold em, know when to fold em, know when to walk away and know when to run.” In many respects, The Gambler could have been teaching a lesson on defense mediation tactics.

Mediation has become a litigation tool that is replacing the trial in our civil system of justice. An “impartial” mediator’s job is to bring both sides to a settlement, and mediators often quip that they have succeeded at the mediation when everyone leaves a little bit unhappy. The key is to find each party’s tolerance for pain and then convince them that a trial will take them beyond that threshold. Good mediators can be very convincing, and can make even the most seasoned litigator question their evaluation of the case.

Which brings us back to Kenny Roger’s advice: It is critically important to have a firm knowledge of your case, both factually and legally before mediating....