Miles Mediation & Arbitration Services

ATLANTA OFFICE:
(678) 320-9118

SAVANNAH OFFICE:
(912) 417-2879

ATHENS OFFICE:
(678)-320-9118

November 30, 2017 No Comments

by Scott D. Delius, Esq.

Who exactly is the opposition in mediation? Should you reveal your trial strategies to the mediator? What about disclosing your settlement authority? Some concepts may seem obvious, others may not, but it is surprising how often mediating parties employ tactics that are unhelpful to their cause.

Who is the opposition in mediation?

One of the main problems in mediations is attorneys that treat the mediator as the opposition instead of an ally. During a caucus, where the mediator meets privately with one side, some lawyers (and their clients) treat the mediator as the opposition. They see the mediator as a manifestation of the other side. Too often they focus on the unreasonableness of the demand or the offer.

Mediating parties should use the mediator as a conduit of information. A good mediator will give as much information to the other side as is ethically possible. Becoming angry with a mediator because the opposing side’s number is too high or too low will not advance your client’s cause.

Always ask the mediator for his or her opinion. A good mediator should give it to you anyway, but if you haven’t heard it yet, ask the mediator’s opinion whether the other side is being unreasonable. Perhaps more importantly, does the mediator think that you are being unreasonable? This is where the mediator can be most helpful by employing strategies to bridge the gap between the demand and the settlement offer.

Another unhelpful tactic is “hiding the ball” from the mediator. While it is understandable and often necessary to exclude the mediator from attorney-client discussions, it is unwise to purposefully keep important information hidden from the mediator. This is information or evidence that may potentially tip the scales in favor of one side or another, or even win the case outright. If the mediator knows about this evidence, he or she can help determine whether and how it can best be used in the mediation to help get the case settled favorably. The opposite principle is also true. Parties should confidentially disclose information to the mediator that is damaging to their own case.

Don’t underestimate the benefit of the mediator’s neutral insight. Remember, you’ve been “living” with your case for a long time, sometimes years. You may have become too close to the case, to the point that you can’t see an important issue. You may be surprised at what you’ve overlooked.

A good example is the issue of insurance. In a personal injury mediation, that’s the entire focus of the negotiations; how much insurance money will be paid to settle the case? As attorneys, we know that the issue of insurance is never allowed in court. It is such a given that the lawyers never give the issue a second thought. But have you thought about what the plaintiff thinks?

Right or wrong, the opposing insurance company is usually the focus of the plaintiff’s attention. The plaintiff probably has thought of nothing else leading up to the mediation.

Most plaintiffs with no courtroom experience just assume that they’re going to be able to talk about the supposed injustice that they have faced due to the alleged actions or inactions of the insurance company. They assume that they’re going to be able to talk about their interactions with the insurance adjusters. They assume that the jury will know the amount of insurance coverage. They assume that the jury will hear about the perceived unfairness of the settlement negotiations leading up to trial.

Of course, the lawyers know that’s never going to happen. That’s why I make a point to tell the plaintiff this important information early during negotiations, that even the word “insurance” can never be mentioned in court. Nine times out of 10, the plaintiff has never been told this information. This revelation instantly changes the landscape for the plaintiff. I have seen this interaction lead to the settlement of many a case.

I’m not suggesting that by telling the plaintiff about the insurance issue that I’m targeting the plaintiff in order to gain an advantage for the defense. I’m simply pointing out one example of how the mediator can engage with one party in a surprisingly simple way in order to move the negotiations forward.

What about your settlement authority?

I’m about to suggest what some may believe to be an unthinkable strategy. Mediating parties should give serious consideration to revealing their settlement numbers to the mediator. That means that the defense should tell the mediator the amount of their authority, and the plaintiff should tell the mediator what they will accept to get the case settled.

Some lawyers have no idea what the number is—either they haven’t discussed it with their client or their client won’t tell them. This happens equally with plaintiffs and defendants and can make for some strange caucus sessions. Other lawyers simply can’t bring themselves to reveal this information to the mediator. After all, your settlement number is your biggest secret, isn’t it?

If both sides reveal their “bottom lines” to the mediator, one of two things will happen. The first possible outcome should be obvious. If the numbers are light years apart, and if there is little chance of bridging that chasm, the mediation will probably end early and the parties will not waste time and money.

I have personally found that there is usually a different outcome. Interestingly, when both parties are honest about their bottom lines, the numbers often overlap each other or are fairly close. Of course, a mediator is not going to reveal any numbers to the opposing parties, but I will tell both of them that their case has a good likelihood of success and it’s worthwhile to keep negotiating.

Even if only one side reveals its settlement number to the mediator, it can be tremendously helpful in getting the case settled. The mediator’s task is to hit the target, and that task is made immeasurably easier if the mediator knows where the target is.

Revealing one’s trial strategy and settlement authority to a mediator may take a tremendous leap of faith for some. If you haven’t tried it before, trust your mediator with your most closely guarded information. You may find that you will be pleasantly surprised at the results.


Mediator Scott Delius, Esq.

Scott Delius, Esq. is a mediator with Miles in Atlanta. He specializes in automobile, brain injury, business, civil rights, contracts, federal law, insurance, military personal injury, premises liability, product liability, workers compensation, and wrongful death cases. To schedule a mediation with Scott, please call 678-320-9118 or click here.

November 17, 2017 No Comments
Mediator Arbitrator Joe Murphey, Esq.

Team Leader Joseph Murphey, Esq, a mediator and arbitrator at Miles, recently shared insights about negotiation and settlement tactics at an Auto Injury Litigation seminar.  The seminar was held in Atlanta and presented by the National Business Institute, Inc. Murphey’s presentations were each available for 1.0 hour of CLE credit.

Murphey’s first presentation centered on “Negotiating with Auto Insurance Adjusters,” including techniques for going beyond an adjuster’s settlement authority and how to restart stalled negotiations. His second presentation focused on bad faith, specifically adjuster case evaluation strategies; top bad faith insurance company tactics and how to prove them; and incident scene investigation tactics and biased IMEs.

For more information about the seminar, click here.

 

 

 

November 14, 2017 No Comments

Team Leader David Nutter, Esq. will share valuable insights on mediating business and contract disputes at the annual Contract Litigation Seminar on November 17. The seminar will be held at the State Bar of Georgia headquarters and is chaired by John Larkins, Jr. and John Dalbey, both of Chilivis Cochran Larkins & Bever.  The seminar is eligible for 6 CLE hours, including 1.5 Professionalism hours and 4.5 Trial Practice hours.

See below for the seminar schedule, and for more information, click here.

WELCOME AND PROGRAM OVERVIEW
John K. Larkins, Jr.

CASE LAW DEVELOPMENTS ON CONTRACT
ESSENTIALS
Richard B. Caplan, LeClairRyan, Atlanta

LITIGATING A CONTRACTS CASE: THE VIEW
FROM THE BENCH
Hon John K. Larkins, III, United States Magistrate
Judge, Northern District of Georgia, Atlanta

THE CONTRACT DRAFTER’S GUIDE TO
CONTRACT DRAFTING
George M. Fox, Fox+Mattson, P.C., Atlanta

CYBER RISK MANAGEMENT THROUGH
VENDOR CONTRACTS
Mitzi L. Hill, Taylor English Duma LLP, Atlanta

DAMAGES AND THE USE OF EXPERTS IN A
CONTRACTS CASE
Lauren A. Warner, Chilivis Cochran Larkins & Bever
LLP, Atlanta

INTEGRATED CONTRACTS, MERGER CLAUSES
AND IMPLIED TERMS
Michael J. King, Greenberg Traurig LLP, Atlanta

HOW TO WIN YOUR CONTRACT CASE THROUGH
CROSS-EXAMINATION
Stephen T. LaBriola, Fellows LaBriola LLP, Atlanta

MEDIATING BUSINESS AND CONTRACT
DISPUTES: PROCESS, PERSPECTIVE AND
PATIENCE
David C. Nutter, Miles Mediation & Arbitration
Services LLC, Atlanta

 

 

 

November 8, 2017 No Comments
Mediator Bianca Motley Broom

Miles mediator Bianca Motley Broom was recently featured in a thoughtful Daily Report article by reporter Meredith Hobbs.
In the article, Bianca discusses her growing mediation practice and part-time role as a magistrate court judge in Fulton County.  When discussing the importance of the mediator’s role, she said:

“Typically in a trial, someone walks away unhappy. That’s where a good mediator comes in. It doesn’t take much skill to run numbers back and forth from room to room. It’s important to understand what motivates people. It’s not always money. Sometimes people are feeling ignored, disrespected or marginalized. A good mediator is going to pick up on that.”

To view the full article on the Daily Report’s website, click here.