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I. Discussing the Release in AdvanceAlthough some catastrophic cases go to trial, most will settle. As discussed above,early involvement by an active mediator can be helpful. Moreover, do not wait until themediation to think about the anticipated release and its scope. Too often, productivesettlement talks suddenly go south over release disagreements.A release following catastrophic litigation should contain many tailored provisions. Inaddition to provisions for indemnification in the event of future reimbursement claims bythird parties, the release should also provide a waiver of subrogation. It is mostbeneficial to get mutual releases, and also releases among co-defendants and insurers.Discussing these issues up front will help all the attorneys, parties and claimsprofessionals – assisted by a forceful mediator – understand that “this is it” in terms ofresolution, and nobody should expect future claims to come out of the woodwork later.J. Acknowledging the MicroscopeCatastrophic litigation is complex, expensive, and stressful; it can bring out the worsttype of litigation conduct by both sides. Always remember that a tragedy occurred fromwhich people have yet to recover, or may never recover. Moreover, catastrophiclitigation will receive media attention. Thus, taking aggressive or novel positions inlitigation, especially in publicly filed pleadings, can backfire. So, too, can beingShipping Co. v. Baker, 128 S.Ct. 2605 (2008). See also, Douglas E. Motzenbocker, Supreme CourtCurbs Punitive Damages Again, Litigation News (American Bar Association), August 13, 2008,available at http://apps.americanbar.org/litigation/litigationnews/top_stories/article_punitive.html (lastvisited January 7, 2015), noting that: “Exxon represents the fifth consecutive case in which the Courthas found a punitive damage award excessive, unconstitutional, or both.”