Explaining To Your Client Why Mediation Is Better Than Trial
The process of preparing a client for mediation begins at the first interview. In a plaintiffs’ personal injury practice, clients seldom have prior experience with the litigation process. However, they may have to unlearn a lot of what they think they know that isn’t right, wildly inaccurate preconceptions of process and case value based on popular culture, sensationalized media reports, movies, and T.V. shows, and advice from misinformed friends and relatives.
Start by outlining the steps of the process: investigation, the gathering of documents, interaction with medical providers to develop an accurate portrayal of injuries and prognosis, the lawsuit process, settlement demands, offers of judgment and settlement, how insurers deal with similar claims, mediation, and trial. The attorney who takes time to explain the process patiently, honestly, and empathetically to clients in the beginning and communicates adequately along the way builds rapport and trust. That leads to an easier time guiding the client to an optimal resolution at the other end of the process.
A few talking points to weave into discussions with clients in the beginning, along the way, and in preparation for mediation when that time comes include:
- Case valuation must be based on evidence that would be admissible in court, preferably through exhibits and testimony of credible witnesses other than the plaintiff. Subjective complaints are credible to the extent that we can objectively corroborate them through radiology images, photographs, medical witnesses, and lay damage witnesses. Involve the client in identifying such evidence, and the client will better understand how the presence or absence of such evidence will affect the negotiation position at mediation.
- Explain the interaction between liability, damages, and insurance coverage. Patiently explain, perhaps with diagrams drawn on a legal pad, the relationship of liability coverage, UM/UIM coverages, time-limited offers to settle within policy limits under O.C.G.A. § 9-11-67.1, offers of settlement or judgment under O.C.G.A. § 9-11-68, and how insurance companies determine what to authorize for settlement.
- Trial is exciting but also stressful. Often everyone leaves some blood on the courtroom floor. Usually, the only people who relish going to a jury trial are the lawyers, for whom it is a peak experience, an adrenaline-producing opportunity to show off their skills. The plaintiff most often must testify in court. Most people fear public speaking more than death, and your client may not be an exception. Clients generally find trials extremely stressful, no matter how well prepared they may be.
- At trial, no matter how right you may feel your position is, your fate is in the hands of twelve strangers. Jurors go in knowing nothing of your case. They may have life experiences and biases that they do not disclose even in the most sifting jury selection process. Often, they are people who resent being there but didn’t figure out how to get out of jury duty.
- At the end of the trial, at 4:45 P.M., it is common for jurors to be eager to go pick up kids or fix dinner and agree to a compromise. In such instances, a compromise power is in the hands of the most stubborn juror who doesn’t want to award much, if any, money to the plaintiff. That drags down many verdicts. Out of about 150 jury trials, I had just one in which jurors asked whether they were limited by what the plaintiff asked for and could they go home and return the next day with calculators. That is rare.
- You hear news reports about blowout verdicts, but you don’t hear about the average verdicts in which jurors compromise to get home on time.
- If you get a stellar verdict at trial, that is not the end of the journey. The other side is likely to appeal. That adds a year or two of delay and involves the risk of reversal of the judgment.
- Mediation is an opportunity to have your “day in court” with an experienced neutral, do it in one day rather than several days of trial, and work out your own compromise settlement rather than having it imposed upon you by twelve people who probably don’t want to be there and couldn’t figure out how to get out of jury service.
- Mediation is confidential. You don’t need to worry about your personal information coming out in a public courtroom. If you get what seems like a lot of money, you don’t need to worry about your friends, neighbors, and relatives reading in the newspaper how much money you got. You don’t have to deal with people resenting your “windfall” or “blood money” or hitting you up for loans and investments in their crazy business ideas.
- When you settle your case in mediation rather than going through a trial to verdict, it is more convenient to structure how you receive the money. You may have a better opportunity to use tax-advantaged structured settlement annuities, settlement trusts, financial plannings, and, when appropriate, special needs trusts to coordinate with government benefits planning.
- Litigation is stressful. When you settle through mediation, you get closure and finality, rather than dragging it out through months or years of trial and appeals. That removes what may be a psychologically debilitating source of stress.
For the attorney, guiding clients to settlement through mediation has pros and cons. An obvious advantage is converting inventory to cash flow, especially in dealing with problem cases and clients. Settlement through mediation may also facilitate structuring attorney fees for tax-deferred retirement planning. A possible disadvantage is that it is more challenging to get significant cases to trial to win eye-popping verdicts because the other side may make an offer your client will not refuse.
If the attorney is careful in case selection, honest and empathetic in molding realistic expectations, meticulous in case preparation, and patient in timing events, most clients will be ready to take optimal advantage of mediation.
Ken Shigley has 44 years of litigation experience in Georgia. Currently, he is a senior counsel with the Johnson & Ward law firm. He was president of the State Bar of Georgia (2011-2012), board chair of the Institute for Continuing Legal Education in Georgia (2012-13), served on the American Bar Association House of Delegates, and received the “Traditions of Excellence Award” from the State Bar’s General Practice & Trial Section (2019).A graduate of Furman University and Emory University Law School, Mr. Shigley also completed the Ultimate Trial Advocacy course at Harvard Law School, an executive education program at Harvard Kennedy School of Government, and four regional programs of the Gerry Spence Trial Lawyers College. He has successfully handled litigation of cases in 93 of Georgia’s 159 counties.