Litigator to Mediator: A View from the Center Chair
Insights and Suggestions for Improving the Chances of Success at Mediation
After nearly three decades of practicing law as a trial lawyer, and attending multiple dozens of mediations as counsel, I developed a sense for how to best present my client’s case at mediation in order to obtain a desirable outcome. For the most part, this approach was successful and, in those cases that did not get resolved, it was almost always due to the other side’s taking of an unreasonable or unyielding position. However, after a becoming a registered neutral three years ago and having mediated close to 100 cases since that time, I realized that the approach I had been taking for all that time, while generally successful, was not necessarily providing my client the opportunity to achieve the optimum settlement possible. Although this article is the result of things I have seen and experienced during my brief time as a mediator, due to this relatively small sample size, I have polled a number of more experienced mediators, and have incorporated their thoughts and insights into this process as well.
Choice of Mediator
Whether court-ordered or voluntary, the selection of mediator can go a long way toward getting the case resolved. One commonly used approach is to let the opposing counsel select the mediator, the thought being that that counsel’s client would be more receptive to the pressures applied by that mediator. While there is a certain degree of validity to this type of selection process, I believe it is important that the mediator’s background and experience be suited to the case at hand. While a skilled mediator can learn the law of the case from the attorneys involved, either at the mediation or through a pre-mediation statement, I have found, both as a participant as well as a mediator, that experience in the respective area of law brings more credibility to the impressions and opinions expressed by the mediator, particularly to the parties themselves. It is one thing for a mediator who has never tried a personal injury case to comment on issues related to liability and damages; it is something completely different when those comments are coming from a mediator having extensive experience in handling and trying PI cases.
In addition to substantive knowledge, a good mediator should be knowledgeable of and experienced in the mediation process – can he relate to an unsophisticated plaintiff and express empathy; can he control the pace and timing of the negotiations; will he remain persistent in seeking a resolution, even after an impasse has occurred; does he effectively utilize tactics such as bracketing or mediator’s numbers? It is worthwhile to find out the answers to these questions prior to agreeing to or selecting a mediator, either by asking colleagues who have utilized the mediator in the past or by asking the proposed mediator himself. Having a comfort level with the mediator ultimately selected is critical to the success of the process.
Have the Client Present if at all Possible
It goes without saying that the prospects for settlement increase significantly when the decision-makers are in attendance at the mediation. Although there may be a situation where the plaintiff is unable to attend in person, either because of age, infirmity or distance, it goes without saying that the party bringing the action should be present. More often, the issue with attendance arises with the defendant, such as where the insurance adjuster is out of state. The adjuster who “attends” by telephone has, in all likelihood, not previously met the plaintiff and is unable to fully understand and appreciate the various subtleties of the claim without seeing and hearing them firsthand. By the same token, having the adjuster present gives the plaintiff the impression that the defendant is taking the case seriously and actually hearing what she has to say. For this reason, I feel it is important for the non-attending adjuster to at least listen in an opening session. As a matter of professional courtesy, I believe it is also important for defense counsel to advise plaintiff’s counsel if the adjuster is not planning to attend the session in person.
Based not only on my experience as a mediator, but also on comments elicited from fellow mediators in preparing for this presentation, the single factor that most often results in a less-than-optimum settlement is the failure to properly prepare. While this is occasionally an issue with defense counsel, it most often occurs with plaintiff’s counsel who mistakenly believes that less time and effort put into preparing for mediation will result in a higher net return. However, the failure to properly prepare for the mediation often has just the opposite result; a defendant who recognizes that plaintiff’s counsel is not truly committed to taking a case to trial, and is utilizing the mediation simply as a means of obtaining a quick and inexpensive settlement, is less apt to offer the full settlement value of the claim. As the saying goes, failing to prepare is preparing to fail.
Preparing for mediation obviously begins with the attorney. Whether representing the plaintiff or the defendant, counsel must know the facts and legal issues involved in her case inside and out. In a personal injury (PI) case, being able to recite the relevant facts of the underlying incident, the nature and extent of the injuries sustained, the extent of the treatment received and the amount of special damages being claimed is essential to an effective opening session. If liability is in dispute, a brief discussion of the law and a recitation of controlling authority is likewise recommended. Similar to the goal of an opening statement in a jury trial, in which an attorney is attempting to persuade at least a few of the jurors of the correctness of her position, the opening session in a mediation should be geared toward laying out the strengths of the case, not just for the mediator, but for the defendant’s representatives, who is the one with the checkbook.
Preparing for mediation also means preparing the client for mediation. Rather than simply having the plaintiff show up at the mediator’s office 30 minutes before the scheduled start time, it is beneficial to meet with the client beforehand to explain the process and prepare the client for what is likely to be a long day. The client should be advised that, contrary to the adversarial nature of litigation, mediation provides the singular opportunity to work collaboratively with the other side in pursuit of a common goal. Toward that end, I feel it is highly beneficial to have the plaintiff make a brief statement during the opening session, not merely to go over the facts of the underlying incident, but to speak more to the impact that the injuries have had on her life. Unlike the short and measured tone of answering questions in a deposition, a brief but sincere statement in the opening session, made directly to the defendant’s representative or insurance adjuster, gives the impression that she is being heard, an important first step on the road to settlement.
Likewise, I feel it is also important for the defendant’s representative or insurance adjuster to also make a few brief comments, addressed to the plaintiff,following defense counsel’s presentation. While an apology, where appropriate, is always nice, even just an expression of sympathy for what the plaintiff has been going through can act as an icebreaker and open the door to meaningful dialogue.
Avoid Last Minute Surprises
The fastest and most sure-fire way to derail mediation is to show up and present tens of thousands of dollars in increased medical expenses or special damages for the first time. The insurance company has based its settlement evaluation on the information and materials it had been provided previously, and it will be unable to assimilate and re-evaluate its settlement position on the day of mediation. While this situation is occasionally unavoidable, such as when the client shows up at a mediation with a stack previously unproduced medical bills, it usually can be avoided through thorough and proper preparation. When this situation does arise at the last minute, it is best to contact defense counsel to advise him of the new information and offer to postpone the mediation so the new information can be considered by the defendant.
A similar situation to avoid, if at all possible, is showing up at mediation and presenting a markedly increased settlement demand from that which had last been conveyed prior to mediation. While this, again, may be the unavoidable consequence of obtaining new information, it is important to remember that defendant’s counsel and the insurance representative are viewing the previous demand as the ceiling for the negotiations, above which it is not prepared to go. As in the above situation, a call to defense counsel prior to mediation would be appreciated.
Utilize the Mediator
It is not uncommon for a party, whether the plaintiff or the insurance representative, to appear at mediation with a preconceived and fixed idea of how the jury will view their case, not only as to liability but on the value of the case as well. This is certainly understandable since each side has been focused on the case from one perspective or the other; the issues appear to be black and white, rather than differing shades of gray. While this is more often the case with a plaintiff in a personal injury case, it can take place on the defense side where, for one reason or another, the adjuster has taken a “line in the sand” approach. In that situation, it is helpful to take the mediator aside and let her know that the client has taken, or is taking, what may be considered as an unreasonable position. Having this knowledge assists the mediator in determining which strategies or tactics to employ during caucus.
Be Aware of Hospital Liens, Medicare Liens and Reimbursement Claims
While this clearly falls within the “Be Prepared” section previously covered, I believe it is significant enough to make it a separate topic. The existence and amount of liens and reimbursement claims, whether asserted by a hospital, physician’s practice, Medicare or health insurer, has a direct impact on the net recovery to the plaintiff, and counsel should be prepared to address these claims at mediation. If a hospital or physician’s practice lien has been asserted, determine if it has been properly perfected. If the plaintiff is a Medicare beneficiary, determine the amount of any conditional payments that have been made as well as the relationship of any such payments to the underlying incident. If a third-party insurer has paid or satisfied some of the medical expenses involved, find out ahead of time if it is a self-funded plan governed by ERISA or if the payments have been made by an insurance company. While the ability to negotiate any of these claims or liens may not present itself until multiple moves into the session, it is crucial to the success of the process to be aware of all liens and claims and to have a strategy in mind to satisfy them. Likewise, defense counsel also needs to be aware of their existence and to have a plan in place for their resolution that does not expose the defendant to a possible double payment.
Utilize Alternative Strategies to Avoid Impasse
Inevitably, every mediation will reach the point where one side or the other has indicated that it is not willing to make any further concessions, either by lowering the settlement demand or increasing the settlement offer. Assuming that that “final” position is not acceptable to the other side, it may be helpful to employ an alternative strategy to avoid an impasse. Consult with the mediator on which strategies might be best received in the other room.
Bracketing is one alternative for a party to offer significant movement in exchange for a corresponding concession from the other side. Utilize the mediator in coming up with the brackets since he has been in the other room and knows what numbers will be well-received, or at least not rejected out of hand.
Another option is to consider some form of non-monetary compensation. In some situations, a formal written apology may be the icing on the cake that the plaintiff needs to bring closure to the case. Another tactic is to offer gift certificates or gift cards, if appropriate, in addition to a sum of money. In a retail premises liability case, this can be seen as the extending of an olive branch to the plaintiff that provides a benefit to both sides. Finally, if impasse appears imminent, a mediator’s proposal can be utilized as a last resort. This involves the mediator suggesting the proposed settlement terms which, if agreeable to both sides, results in a settlement. If one side rejects the proposal, there is no settlement and neither side is informed if the other side had accepted the proposal.
Even if the mediation session results in an impasse, this does not necessarily mean the process is over. A plaintiff, who is tired and frustrated after a long and unsuccessful mediation session, may need time to sleep on it or discuss the settlement proposal with family members. Similarly, an insurance adjuster may need time to re- evaluate the company’s position to see if additional authority can be issued. I attempt to remain in contact with the attorneys following an impasse to see if there is any interest in continuing the process by telephone. In order for these continuing efforts to have any chance of success following an impasse, it is important for the parties to leave the mediation session on a cordial and optimistic note. Storming out of the mediator’s office without acknowledging the other side is unlikely to result in any further concessions from that side.
Douglas Wilde, Esq. is a mediator with Miles Mediation in Atlanta. He has over 30 years of experience as a defense attorney, personal injury attorney, and mediator. To schedule a mediation with Douglas, please call 678-320-9118 or visit his online calendar.