Paralegal’s Guide For How To Prepare For Mediation
By Gregory J. Parent, Miles Mediation & Arbitration Services, Inc.
Historically speaking, paralegals are essential to a successful law firm. Depending on the type of law practice and the experience of the person, a good paralegal can be responsible for everything from meeting and signing up potential clients to helping keep abreast of the blood and guts of the case, including filing and scheduling. Paralegals are often the liaison between the attorneys and the clients, providing much needed support.
That role is doubly important when it comes to mediation, as the legal landscape slowly shifts towards more and more alternative dispute resolution. Mediation is a valuable tool for the resolution of cases. It provides a forum for the parties to work collaboratively to resolve cases through nuanced negotiation and discussions, moderated and shepherded by a trained mediator.
It is a valuable opportunity for parties to resolve their cases with their own input, rather than turn the decision-making over to a judge or jury. Since it is an opportunity to resolve a case and get some finality for the client, it should be given the utmost respect and prepared for in much the same way you would gear up for trial.
There are only two times when a case value can be determined. The first is when a jury awards a verdict. The second is when a defense attorney or an adjuster makes a final settlement offer. Those are the only two times that your case has true value. Everything else is purely conjecture and speculation based on past performance and experience.
While the pace and style of a mediation can vary with different mediators, each mediation has three component parts. There are usually opening remarks by the mediator, where he or she establishes his credentials with a brief recitation of their legal career and experiences. These remarks should include a statement or an explanation of the process and the goals of mediation. The opening remarks are following by the plaintiff’s presentation of the case by the attorney. Depending on the attorney’s preference, the client may also speak during the opening session. Following the conclusion of the plaintiff’s presentation, the defense team is invited to share their presentation of the case. At the conclusion of both presentations, the mediator excuses the defense team to their room and he or she begins the process of “shuttle diplomacy” delivering demands and offers between the two rooms.
There are three dominant themes which should govern your actions in prepping your attorney for every mediation.
- Make the case file look good
- Make your attorney and client look good
- Make your presentation of the case look good
It is essential that you understand and appreciate that mediation is equal parts negotiation strategy and theater. Think of it like a live scrimmage game. Usually, the negotiations fall within the domain of the attorney. It is important that the paralegal work in tandem with the attorney, however, in preparing for the theater aspect of mediation.
This paper is designed to help you put some strategy and thought into your mediation preparation.
Whether your case is a $5,000 garden-variety automobile accident or a $2 Million dollar wrongful death case, you should implement the same strategy for mediation that you would employ in getting ready for trial, as it relates to file organization and preparation. For the same reasons you would not show up to court in a T-shirt and cut-off jean shorts, you should not show up to mediation with a disheveled and disorganized file.
Know the type of practice that you have and govern yourself accordingly when it comes to preparation for the mediation. If you work for an attorney who gives you wide latitude when it comes to prepping discovery and contacting the client, then you may know more about the case and the clients than your attorney. If you work for a particularly busy attorney, he or she may not even have time to review the file until the eve or morning of the mediation. Therefore, your role in getting your attorney up to speed for is crucial in the success of the presentation during mediation.
- Make sure you have updated all filing and organized the physical or electronic file in a manner to where your attorney can quickly and easily get to the information needed.
- Consider prepping a mediation notebook, complete with tabs for the police report, witness statements, discovery responses, deposition transcripts, medical records, medical bills, and photographs.
- Prepare summary sheets with medical bill totals.
- Make copies to share with opposing counsel and the mediator.
A “good looking file” projects to the defense attorney and adjuster that the attorney is organized, thorough, and ready for trial. You want to help your attorney project the image that you are ready to go trial and capable of doing a good enough job at trial to get a winning verdict for a lot of money. By projecting that capable image, you provide your attorney with negotiating leverage that he or she can use to help increase the value of a case. Defense attorneys usually prefer to exhaust all settlement negotiations where there is a credible belief that a plaintiff will go trial and the attorney appears poised and capable of doing a good job.
When your attorney can review a well-organized file, he or she can speak with intelligence about the case and easily put his or her hands on the documents needed to support a particular argument that is being made. They simply come across more confident and prepared which can usually translate into getting good value for the client.
The converse is also true. Where a file is disorganized and an attorney is ill-prepared and bumbling, it sends a signal to the other side that the attorney may be incompetent. If that perception is believed, it may cause the defense to “dig in” their heels and refuse to offer top value during negotiations. Moreover, it can embolden them into thinking that that can fare better at trial than through negotiations.
A sloppy file and unprepared attorney can also lead the defense attorney and adjuster to believe that the plaintiff is not taking the mediation seriously. Such unintended disrespect to the other side may also lead them to offer less than top value for the case.
If you have ever had to bail your spouse or partner out at a cocktail party with a subtle prompt to remind them of a guest’s name, then you know the importance of making your attorney look good at a mediation. As the person who most likely knows the most about a particular case and client, it is your job to give your attorney a crash course refresher on the file to make him look like the most informed person in the room and a champion in front of his or her client. There are several things you can do to help facilitate that image and project confidence to your client that they are getting top notch representation.
- Meet with the client in person or on the phone to go over the file and the protocols and procedure of the mediation.
- Ask them questions and solicit from them any concerns they have about the mediation. If you can answer their questions, go ahead, but it’s equally important to prepare a list of any concerns to give notice to the attorney.
- Encourage the clients to dress appropriately for the mediation—the same as they would for trial.
- Provide them with a reminder and notice of the time, date, location and directions for the mediation. At Miles Mediation, for example, that information is readily available on the firm website.
Meeting with clients to prepare for mediation does not necessarily need to take place in an office. Spending some time on the phone can help allay the anxiety clients might feel about mediation. Try and answer any easy questions they may have about the logistics of mediation. For those questions where you don’t know the answer, make a note of the client’s concerns so you can inform your attorney. Getting a “head’s up” on those concerns allows him to look confident and empathetic to his client when he addresses their questions during his meeting with them. In this situation, the “theater” of mediation works both ways—for your clients and the defense team.
In addition to providing your attorney with notice about the nuts and bolts questions a client may have about a case, you should also provide the attorney with nuggets and tidbits of personal anecdotes about the client. Remind him or her of the client’s spouses name, their kids’s names, or the client’s favorite sports team. How does that help your client, you may ask? Imagine the comfort level and confidence your client will have in your attorney when he or she walks into the mediation for prep and says, “Hey Jane, great to see you again. How are Tommy and the kids doing? How did they end up doing in that little league tourney last month? Now let’s talk about how we’re going to handle that prior DUI from when you were a teenager . . .” Meanwhile, you can sit back with pride, knowing you helped make them both look good.
While it may seem a little condescending to presume to tell clients how to dress for a mediation, it can be very important to your presentation of the case. No one in the history of mediation has ever gotten in trouble for being over-dressed. That being said, clients do not necessarily need to be dressed in conservative dresses and three-piece suits. Encourage the clients to be comfortable, but remind them that they are being evaluated during a mediation and they should try to put their best foot forward. For example, they should refrain from clothing with profane language or sexual imagery. If they have tattoos with lewd images, consider long sleeve shirts and blouses. One good rule of thumb is to have them dress as though there were going on a job interview. If that’s too daunting, then consider advising them to show up in something dressy casual.
There is no set formula for how you should present a case at trial. Going back to my first statement contrasting a $5,000 garden-variety auto accident with a wrongful death case, the answer will depend on the type of case. Some thought, however, should go into how you organize and prepare the information to be disseminated. The type of presentation will likely mirror both the style of your attorney and the kind of case.
If your attorney prefers to talk about the case without any visual aids, you should consider prepping packets with some of the essential information that you anticipate will be covered. For example, you can prepare a one page summary or spreadsheet listing all medical providers and their bill totals. Provide copies for all parties and the mediator, so that they can follow along with your attorney. You may wish to also provide other materials, including photographs or a police report as part of the summary packet of information.
Some cases merit a more extensive preparation. Those items may include: color charts, blown up photographs or scene diagrams, and Power Point presentations. Once again, it’s important to know your attorney. If your attorney is an old dog that refuses to learn new tricks and is still confounded by that “new-fangled fax machine” he or she purchased 20 years ago, Power Point may not be the best idea for you. Consider charts, informational packets, or paper charts. If your attorney, however, has enough gadgets to run a small country with a touch screen and a Bluetooth laser pointer, perhaps you can have a more sophisticated presentation.
Regardless of your attorney’s preferences, make sure that you either teach your attorney how to work with the presentation materials or that you come to the mediation yourself to make sure it goes off without a hitch. Few things are more frustrating for a plaintiff’s attorney than not being able to get a Power Point presentation to work on a laptop computer. They get frustrated, then flustered, then angry and usually end up making a disjointed presentation.
To avoid such concerns, lobby your attorney to attend the mediation—at least for the opening session—to assist in running the computer for the Power Point. If charts have been prepared, your attendance could be helpful in ensuring a smooth transition between setting up and displaying charts, photos, or other relevant demonstrative evidence on an easel.
The bottom line with the presentation style is that it should mirror the work and effort that went into working on the case. You don’t want to have a C+ presentation on an A+ case. So take some time to discuss with your attorney his or her preferences and be ready to implement their wishes with the technology or demonstrative aids that best suit their personality.
A good paralegal is often responsible for the minute details and little things that go largely unnoticed by those without a trained eye. As guardians of the case, you are often the nexus between the attorney and the client. You have your hands on the pulse of the case and you know all of the nooks and crannies of the case inside and out. It is important that you call upon that wealth of knowledge in preparing for mediation. If you are successful in accomplishing the little details that have been outlined in this paper, you will make your cases, clients, attorneys, and presentations look good at mediation. That will add value to your client’s cases by positioning them in the best light possible during the negotiation process.
Take pride in your role and remember that consistent preparation, coupled with an eye for theater and presentation, can lead to successful meditations for your clients.