Mediation gives the parties an opportunity to settle their case without having to take a chance on trial. It is not a trial.
The mindset for mediation should be settlement. If it doesn’t work out and the case is not settled, then the lawyers for each party can put on the litigation hat. If the goal then is to try to settle or at least explore the parameters of a future settlement, let me offer some tips for the parties:
The work for settlement starts long before the mediation date. Start providing the opposing party information they need to evaluate the case to better understand risk and cost of litigation as well as to obtain adequate authority to settle.
Don’t dump documents on your adversary on the day of mediation, thinking the surprise will make the other side settle immediately. Most likely, it will instead result in that party needing time to evaluate the information and assess its value, resulting in either an impasse or continuation of the mediation.
If you are the plaintiff in a personal injury suit, this means providing the pertinent medical records, bills with a summary, insurance lien information, photographs, narrative reports and surgical recommendations to the defendant.
Provide this information well in advance of the mediation so the defense attorney can get it to the right people to get the best and highest authority. Insurance companies need time because of their process of evaluation.
Call the other attorney before the mediation. Ask if there is any information he or she needs. Discuss the case in an objective manner. It helps set the right frame of mind for mediation.
By the same token, call the mediator and discuss the case with him/her. Let them know your client’s mindset. Does the plaintiff think he/she has a million-dollar case when it is clearly not? What about your client’s personality affects his/her decision-making?
Be honest about the weaknesses in your case with the mediator. But also let the mediator know if the adjuster or the opposing party had been a hindrance to reason.
Prepare your client. For example, in a commercial litigation case, evaluate the evidence on liability. Go over the weaknesses and strengths of the deposition testimony, the credibility of the witnesses and corroborating evidence or lack thereof. Discuss the need for experts and cost. Are there any weaknesses in the damages proof? Need experts there too? Costs for experts? Then come to consensus on a range of what a reasonable outcome would be at mediation versus trial, including the added costs of trial.
The same applies to personal injury cases. I do a chart outlining what the likely net would be given a settlement amount at mediation. Then I compare it to trial. I assume out of pocket medical bills and insurance liens are not reduced. I compare that to a higher verdict at trial.
Unless the verdict is substantially higher, the plaintiff may net out more even if the case settles for 25% less at mediation than a verdict at trial. For the defendant, I would go over the verdict form. I think it is important for the defense in these cases to see the actual form the jury will be asked to fill out, rather than the company’s looser analysis from the four corners of a claims file.
The defense often undervalues or even ignores pain, suffering, mental anguish and perhaps the most important element of damages—inconvenience.
Be more objective at mediation and come into it with the idea that you and your client, the other attorney and his/her client, and the mediator are here to solve a problem and among you all, you should be able to solve it if everyone is reasonable and realistic. Save your closing argument for trial.
Don’t be a jerk. Be humble. If you cause an emotional reaction to the other side, you will hinder the progress of the mediation. It will cause the mediator to have to spend the first hour or two defusing the anger in the other room. Keep the temperature low. I know you want to make your point, and you will, but it will be more receptive if given in the right tone.
If your adversary makes a mistake or clearly misstates something, do not throw them under the bus in front of their client. Bad form. Counterproductive. You might get rewarded for taking the high road.
In a case where I represented a plaintiff in a personal injury case, the defense attorney made a statement at mediation that helped my case more than his. He also misstated some facts, and stated that if he were wrong, I would correct him. I did. But not in front of his client. We were rewarded.
Send the mediator a statement at least a week before the mediation. It helps. We read these things. You will be surprised how many litigants don’t send a statement.
Each case and litigant are different, but these are good guides in helping you get the best result out of your next mediation.
Musa Farmand has been practicing law since 1985 and is a Florida Supreme Court certified mediator. He has mediated and represented clients in cases involving fraud, breach of contract, usury, landlord-tenant disputes, car and commercial trucking crashes, premises liability, assault and battery and wrongful death.