From the Mediator’s Seat

Posted by Kenneth C. Anthony Jr.

I’ve been practicing law for 33 years now and most days of the week still act as an attorney for a client, trying my best to further his or her cause. But about 17 years ago, I started acting as a mediator once or twice a week. While I still participate in mediations representing clients, I think the once or twice a week that I sit in the mediator’s seat has given me a better perspective of what works and doesn’t work in the mediation context. So here are a few observations from that perspective. Since mediation usually consists of a lot of going back and forth, to some extent I’ll go back and forth with suggestions for the plaintiff and defendant alternately. Since it seems the custom, in mediation as in court, for the plaintiff to go first, we’ll start there.

Don’t start at the moon

If you think your case is really worth fifteen thousand dollars, don’t start out asking for a million. Just because there is a million dollars worth of insurance coverage, that still doesn’t justify starting there. In fact, if you don’t sincerely believe your case is worth more than a million dollars, you shouldn’t start there because no one’s going to pay you the limits voluntarily when that’s the worst they can get hurt at trial. Beginning with a wildly unrealistic figure doesn’t make you look smart or scare anyone. It makes you look like you either don’t know what your case is worth or you haven’t told your client. Neither is good. And it puts you in a position where you have to make ridiculously large reductions in your demand to get to a realistic number. If you haven’t prepared your client for this, the client will begin to look at you funny and not understand what is going on. “A few hours ago you said my case was worth a million dollars. Now you want me to take ten thousand?”

The better approach is to act as we all did before mediation became the norm. Negotiation would begin with the plaintiff’s lawyer making a demand of the defense lawyer. It was higher than the plaintiff would accept but not absurd, and there was usually some basis for the number. It wasn’t just pulled from the air or made because that was the limit of the policy. Make a demand on the high side of reasonable, give a reason why you think that number is justified and go from there.

Don’t be silly just because they’re being silly

The converse of starting at the moon is starting in the cellar. No matter how ridiculous you think the plaintiff’s demand is, that’s no reason for the defense to be just as childish. Send the message back that even though the plaintiff obviously has not tried to evaluate the case honestly, you have, and you have come prepared to negotiate reasonably and with a basis for your numbers. That means if it’s a case of clear liability with hard medicals of fifty thousand dollars, you don’t start at five thousand dollars just because the plaintiff asked for ten million. Even starting at fifty thousand in that case is not reasonable, because there has to be some element of pain and suffering.

“If they’re there, we can’t start that high or we’ll run out of room,” makes no sense. That seems to assume that there is already a magical point that both sides have to get to by taking equal, or at least proportional moves—some seductive and inexorable choreography by which the star-crossed lovers are destined to come together—which is impossible if the plaintiff has actually started at a wildly unrealistic number. Make a good faith offer with a rational basis and let the plaintiff, or actually the mediator, figure out how to get there. That’s what the mediator is for.

Use audio-visuals only when you really need to

Just as in a trial, good demonstrative evidence can be compelling, even essential on some issues. Good photos of severe property damage, pictures or videos of the plaintiff recovering from injuries, day-in-the-life, smoking gun documents, crucial contract clauses or deposition testimony, even snippets (and I do mean snippets) of video depositions, all can be effective when used sparingly and to make a point. Remember, though, this is mediation, not trial. The jury hasn’t seen this compelling evidence before and should be impressed. The other side undoubtedly has, and so your presentation does not have the same first impression effect. Belaboring points of which everyone is aware does not make you look like a thoughtful and prepared advocate. If you think there’s something that’s important that maybe opposing counsel hasn’t emphasized to the client, make a point of it. This is true for both sides. Defense counsel can make effective use of demonstrative evidence, when it is crucial to the case, to show the plaintiff what would be shown in court. If what you’re putting on the screen is not important visual evidence, let’s get on to what we came here to do, which is negotiate.

Be extremely judicious in your use of PowerPoint. When I use that term, I am principally referring to the sort of slideshow presentation where each slide has several bullet points that may zip onto the screen. This may be effective in business presentations; I don’t know. But it doesn’t seem to me to work in a courtroom and much less in a mediation where the other side is already familiar with the case. At all cost, don’t prepare your slideshow with bullet points and insist on reading it to everyone. Treating the other side like schoolchildren is not an effective negotiating technique. Remember, in the courtroom or the mediation setting, when the jury or the defendant (or adjuster) is looking at the screen, they’re not looking at you. If you’re trying to persuade, you want the people you’re trying to persuade listening to and looking at you.

If you think some sort of audiovisual or slideshow presentation is warranted and would be effective, consider getting it to the other side ahead of time. That way it can be shared with everyone involved in making a decision but who might not be planning to attend the mediation. No matter how many orders are issued requiring the person with “full authority” to attend the mediation, there will always be someone who is not there whose opinion is important and who might be impressed with your presentation if they get to see it and see it when they have time. Prepare your presentation ahead of time and send it on a CD or upload it to a website, where everyone involved in evaluating the case can see it ahead of time, separately or together, as many times as they want.

Talk to the mediator

Remember the cardinal rule of mediation, and why it works: everything is confidential. Let the mediator talk to your adjuster. And I’m not just talking about the adjuster in the room with you; I’m talking about the one on the phone. The mediator is getting to talk directly with the ultimate decision maker on the other side, the plaintiff. Why should the mediator not be able to talk with the decision maker on the defense side? Maybe the mediator will learn something about why a particular position is being taken that may help convince the plaintiff. And maybe, just maybe, the adjuster in the room or on the phone might learn something from the mediator. Is someone being a little insecure? The mediator has the advantage of actually having met the plaintiff. After all, the mediator has gotten to go in the other room and hear their secrets. And presumably the mediator has been chosen because he or she has some experience in the area of law involved and the venue where the case is pending. It can’t hurt to talk.

Use your client effectively

Those of us who try cases know that perhaps the single most important factor in evaluating a case is the client. A likeable, presentable, sincere client who can express himself, plaintiff or defendant, makes a world of difference, and the opposite is also true. If you’re representing the plaintiff, discuss beforehand what, if anything, they may be called upon to say. It should not be long, but if the plaintiff (and, in appropriate cases, the spouse) can, in a few sentences, emphasize what he/she has been through, how he/she is hurt or the effect the case has had, that can be powerful. It shows the defense client, who has probably not met the plaintiff before, that the plaintiff is a real person, not just a file, who can appear before a jury and present his or her case. On the other hand, if you do not think your client can express himself well, don’t let him talk, or the opposite will become evident. If the defendant or a representative can attend the mediation and present his or the company’s position sincerely, that can have a powerful effect, too. This can be particularly true in business cases. Apologies, in appropriate cases, can go a long way. Remember, everything is confidential. Many plaintiffs are genuinely moved by a sincere apology.

Don’t bring something new to the mediation

If you receive a huge set of medical records or find some key witness or document the day before mediation, postpone (a word mediators never like to hear). Surprise may work at trial, if that is even possible in these days of full discovery, but it never works at mediation. Everyone needs to be working off the same facts and evidence. Even if not intended, bringing something new and important to the mediation can leave the other side feeling ambushed and shut the mediation down. Be sure to get everything you think is important to the other side well before the mediation or, if you get it late, share it as soon as possible with an explanation as to why it’s coming now. Remember that, particularly on the defense side, the information may need to be shared with a number of people for someone to come to the mediation with sufficient authority. But the same goes for the defense; plaintiff’s counsel can’t prepare the plaintiff properly if he or she doesn’t have all the information.

Prepare your client

I start out the mediation explaining the process, and I even have an additional explanation I give the plaintiff during our first caucus, since it’s probably the first time he or she has been through the process. It also helps, however, if you have discussed the process and, more importantly, the value of the case, with the plaintiff before you get there. If the defense is willing to offer a reasonable settlement amount, I’ll get the plaintiff there one way or another, but it will be much easier and, more importantly, the plaintiff will feel much better about it, if he or she has come with reasonable expectations. If the plaintiff really came thinking he or she would be leaving the mediation with a million dollars and leaves with ten thousand, he or she is going to leave thinking that the defense, the mediator and the legal system have just run over them and that the plaintiff’s lawyer did nothing about it, even if the amount he/she is receiving is a reasonable sum.

Get it in writing

At the end of every successful mediation, get a settlement agreement signed. It doesn’t have to be anything fancy, but it should contain the essential terms of the settlement and be signed by those with authority. Everyone should also leave with a copy of the agreement. It’s a good idea to put it in the form of a stipulation that meets the requirements of Rule 43(k) so that it can be filed with the court if necessary.

In closing

Mediation can look a little strange when you step back and look at it. We settled cases for many years, and still do settle some, without mediation. It seems to encourage the sort of extreme positions I’ve described at the beginning of this article, yet most cases settle in spite of the wide discrepancy in valuation that seems to appear at first. The success of mediation probably has much to do with forcing busy people to set aside a time to focus on the case and coming prepared with an intent to try to settle it that day, rather than sending letters or emails back and forth or playing phone tag while being distracted with other matters. But mediation also serves the worthwhile function of providing the perspective of a person with some experience who has no dog in the fight and who repeatedly asks people to reconsider their positions. I hope that some of the suggestions in this article can help your case to settle and help your client to feel that the system worked and worked fairly.

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