Why Antitrust Cases Demand a Different Kind of Mediator

Most mediators can help resolve an ordinary business dispute. Antitrust cases are different.

They arrive with economic experts, frequently have government investigations running in parallel, and have damage calculations that can swing by hundreds of millions depending on how a market is defined. Antitrust cases also carry a unique trifecta - treble damages, joint and several liability, and no right of contribution. The mediator who handled your last contract dispute is likely not equipped for an antitrust case. And you'll know it by noon.

After nearly 30 years litigating antitrust cases on both sides, I've seen how these mediations break down. It's rarely the money. It's usually the mediator's inability to engage with the substance.

The Regulatory Risks

Antitrust disputes rarely live in isolation. A DOJ or FTC investigation, a state AG inquiry, or a parallel class action in another jurisdiction. Each creates leverage that shapes what parties can say, offer, and accept. A mediator who treats the case as a standalone contract dispute misses this entirely.

Effective antitrust mediation requires reading the room across multiple theaters at once. What does a settlement signal to regulators? Does an offer create a damages floor in parallel litigation? Does the proposed settlement language create problems with ongoing government negotiations?

These aren't hypothetical concerns. They're the questions that determine whether a session produces a term sheet or a 2 PM breakdown.

The Economic Experts

Antitrust cases often live or die on market definition, damages methodology, and expert credibility. When parties are $50 or $500 million apart, the gap is usually rooted in competing expert frameworks, not bad faith. A mediator without fluency in how these models work cannot pressure-test them or help counsel identify where the other side's expert is vulnerable.

I've litigated cases where a single expert assumption changed a damages number by a factor of ten. That's not a detail. That's the negotiation.

When I work on an antitrust mediation, I engage directly with the economic analysis. Not to reach a conclusion for the parties, but to help them understand what a judge or jury is likely to do with competing expert testimony. That realism is what moves cases.

Why the Treble Damages Calculus Changes Everything

Federal antitrust law imposes treble damages, joint and several liability, and no right of contribution. That combination produces a negotiating dynamic unlike almost any other area of commercial law.

A defendant with a relatively small market share can be held liable for three times the total damages across all defendants. Even a strong defense posture carries catastrophic tail risk. Mediation is not just a good option in these cases, it's often the only rational one. But only if the mediator understands that pressure and knows how to use it constructively.

This is where preparation matters more than presence. By the time the parties are in the room, I've already worked through the damages exposure, the regulatory timeline, and the key expert vulnerabilities with each side's counsel. The session is a negotiation, not an education.

The Specialist's Choice

If your case involves Sherman Act claims, class certification risk, multiparty liability, or a government investigation running in parallel, you need a mediator who has actually litigated these cases. Not one who has handled "complex commercial" matters and is willing to give it a try.

My background includes representing plaintiffs and defendants in multiparty antitrust cases, Sherman Act conspiracy cases, merger challenges, and RICO-adjacent commercial claims. I bring that experience to every antitrust mediation, and it changes how quickly parties find common ground.

If you're facing an antitrust dispute and want a confidential conversation about whether mediation makes sense at this stage, contact me here.

You can also read more about how I approach antitrust and competition mediation and complex commercial matters that cross practice-area lines.