By S. Jon Trachta
1.Prepare, prepare, prepare
You must know the mediator’s style, i.e., is it evaluative or facilitative. If you don’t know, I would suggest setting up a pre-mediation conference with the mediator. My style is to be facilitative at first asking questions of the parties, trying not to be too judgmental. As the mediation progresses, and especially if the parties are stuck, I become much more evaluative and finally even much more directive because my goal is to get the case resolved, not just bringing the parties together.
◾Your case •Evaluation – Engagement Letter
A primary reason for mediation failure is a failure to know your own case. You must prepare the case as if you were going to trial. I have often seen too many lawyers come to mediation unprepared. A number of times I have been handed a stack of medical records, etc. by the plaintiff’s attorney and asked to settle the case. You need to do the homework for the mediator. You must know the evidence inside and out and you must be able to articulate it. You should evaluate your case with several neutral observers, both on liability and damages.
In my engagement letter, I always ask the parties to evaluate their case. The reason I am asking you to do this is not just to give me your evaluation upon which I can base mine, but I want you to start thinking about what a jury would do. What are the high and low jury verdicts? What is the probable verdict and how many times out of ten do you expect those verdicts? I want you to look at trial reporters and other research data to help you make this decision. If you do not know how to make this evaluation, find somebody who does and sit down with them. (I would be glad to talk to anyone about how to evaluate.)
I am surprised by the number of times it is ignored by plaintiff’s attorneys. I usually get an evaluation by defense attorneys and I believe that is because they are forced to report everything to their companies and are forced to write a pre-hearing evaluation report when they seek settlement authority.
Prepare a position statement. This sounds pretty basic but again some people don’t do it. For me, the most important reason for this is for you to begin to collect all the material in your case and to begin to analyze it.
My thought is, why not? Again, in my engagement letter I always ask the parties to share their position statements. Some do and some do not. But if you are negotiating from strength, why not put all the cards on the table and share them with the other side. The mediation is the time to get top value for your case short of actually going to trial and without all the risks of going to trial. If you can’t convince the other side that you have a strong case, how can you expect them to part with their money?
If there is something that you want to withhold from the other side, i.e., your evaluation, do just that but share the balance of your position statement.
Preparation of the client applies both to plaintiff and defendant. Once you have your position statement finished, share it with your client. They need to know that there are two sides to the case and that they are not always going to get the record (low or high) verdict every time. They need to know what your evaluation is and what they are facing when they go to mediation. When I did defense work we used to say that what insurance adjusters want is the news. It may be good news or it may be bad news but they need to know it. They hate surprises. Doesn’t the same go for plaintiffs?
2.Take advantage of the hallmarks of mediation
◾Party driven solutions
The parties are in a better position to solve their problems than eight strangers off the street.
This blends into the next topic of control. Wouldn’t we all want to have control of our problems rather than let someone else decide them for us? I always cover this in my joint caucus with the parties and emphasize that this is a process where they have control. They get to decide whether to make an agreement or not. However, to a large extent when you go to trial you lose control. Anyone who has tried more than ten jury trials knows this to be true. We have probably all lost a case or two that we should have won and won a case or two that we should have lost. Juries, as we all know, do not always decide cases the way we want them to. Sometime they even decide it on inadmissible evidence. Example, a fairly recent case where the jury assumed health insurance but were wrong. This just goes with the territory of being a trial lawyer. Juries may decide against you because they don’t like your client. They may decide it on a million things other than the magnificent way you tried the case.
One of the reasons mediation works rather than the way we used to negotiate cases is that the mediator is, and always should remain, neutral. Other then wanting to get the case settled, the mediator should have no agenda. If you think he or she does, then find someone else.
A mediator is not an advocate but you as an attorney must understand the mediator really is advocating with both sides to force the issue. At the outset, I tell both parties that I will vigorously discuss with them the issues on liability and damages. I also tell them that they may think that I am taking the other side but to remember that I am playing devil’s advocate. I also ask them to look at the reasonableness of their positions (what would your mother say). If towards the end they are not doing this, I may get more directive and say something to the effect that “if you take that position at trial you are going to get killed.”
3.Get the key people there
It is crucial for plaintiffs, not just plaintiffs’ attorneys, to attend their own mediation. If they cannot, the mediation should probably be rescheduled. This will probably be the first time that the adjuster has ever seen the plaintiff. Plaintiff’s attorney wants his client to make a good impression upon the adjuster. One burden of the plaintiff’s attorney is to convince the adjuster that the plaintiff is not the person whom the defendant and the defense attorney say she is.
For the defense, the person with settlement authority needs to be there in person so that they can evaluate the plaintiff and hear all of the arguments in the mediation. Often the defense makes the mistake of having the adjuster present by phone. This is especially true in Tucson, which is not easy to get to. In my opinion, this is a mistake. If they do not appear they have missed out on all of the good work the mediator has done in bringing out facts that may have not been apparent before. It is a difficult task for the mediator to ask the adjuster to pony up more money when she has not been there to hear the plaintiff’s side of the case.
4.Adjust your conduct for mediation
◾Allow, no encourage your client to speak. This goes along with confidentiality. I am sure that all of you know that in Arizona settlement conferences, i.e., mediations, are confidential by statute. One reason mediations fail is because someone is withholding something or is not being truthful about a position they are taking. The knowledge that everything done in the mediation is confidential promotes openness and honesty. Clients need to be told they can talk as much as they want in the mediation and that they will get to say very little and probably feel frustrated at trial.
◾Be respectful of the other side. Remember you are trying to extract money from the defense so don’t alienate the guy who is writing the check.
5.Play dual roles
At the outset, it is important for the attorney to be an advocate for his or her side. You need to give the mediator the arguments to be made when he goes back to the other side. If you are not able to do this, you are depending upon the mediator to pick out the strong points of your case and relay them to the defense. You should know the strong points on liability and on damages and be able to articulate them in a simple and clear fashion. No adjuster will part with significant amounts of money unless she is convinced that she stands significant risk at trial of losing more.
As the mediation goes on and you get within a striking range of what would be a good outcome, you must shift from the role of advocate to the role of counselor and be able to advise your client about the value of what is being offered to them at this point in time, the cost of going forward, both in terms of monetary costs that will be expended in bringing the case to trial, and the personal costs of sitting through one to several weeks of trial, including not only the stress, but also the possibility of losing.
6.Don’t be the one who causes the mediation to fail
My experience tells me that when mediations fail and are unsuccessful they are due to two primary causes: Lack of preparation or unreasonably high or low expectations
As an attorney, you may need to lower your client’s expectations. Again, this goes back to preparation and evaluation. You need to discuss with your client all the possible outcomes. If the mediation fails, it probably means that someone is being unreasonable on the high or low side. You need to look at your evaluation and see if that means you.
7.Motivate the participants
The question is how do you get a teenager to clean their room. The answer is you have to motivate them to want to clean their room. They won’t do it because you order them to, or if you do it is not going to be a lot of fun.
Or, said another way, how do you herd cats? We all know you can’t push them and you can’t even lead them. You have to motivate them. So how do you do that with cats? It is with food. Open a can of tuna and they will follow you anywhere. You need to figure out what constitutes the tuna, i.e., what motivates (time, expense, stress, risk of loss, punitive exposure, etc.)
◾Be patient: Impasse
In almost every mediation I conduct, there is a point in time that I think this one is not going to settle. Usually not too long after that, there is a breakthrough and it does settle. Many mediations settle either just before or just after lunch or somewhere between 4:30 and 5:00 but be prepared to go all night if necessary.
Finally, back to the idea of being a counselor again, I think one of the worst things that can happen is to be unrealistic or for the defense to allow their company to be unrealistic about their chances at trial. Especially in a high dollar case if the defense comes in with a very low-ball offer they will probably blow the mediation, infuriate the parties, and drive the case towards trial. What they may be facing next is a huge loss that needs to be paid with a big check. Therefore, the defense needs to use its political capital to convince its client to offer a reasonable settlement. This applies just as well
to plaintiffs, however, I see it more with defendants where there has been an unrealistic low valuation early on that doesn’t change. As counsel, we need to be realistic with our clients.
Remember: Prepare, prepare, prepare!
Law Offices of S. Jon Trachta
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