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Pat O'Connor: Tips on Assuring Failure (or Success) at Mediation


Thumbnail image for PTO - Photo of 11-23-11.jpg*Written for CaseMetrix Subscriber Editorials. Published August 14, 2012*

For those representing plaintiffs at mediation, there are at least two ways to guarantee that your client will not obtain an adequate settlement: failure to provide current information to the opposing side (especially true when dealing with insurers in cases involving medical expenses and lost wages) and failure to communicate. 

For those representing defendants, or the interests of insurers at mediation a similar problem exists - failure to exchange current information with the opposing side will almost certainly be an impediment, if not a bar, to settlement.  Likewise, failure to grasp the rare opportunity to have an uninterrupted conversation with the opposing party can be the difference in reaching or not reaching settlement.
1.    Educate the Other Side    
Having participated in hundreds of mediations as a mediator or as legal counsel representing either plaintiffs or defendants, I am too often surprised by the lack of pre-mediation information exchange and preparation conducted by reputable lawyers.  It should be unnecessary to remind any experienced lawyer that claims are evaluated by insurers and defense counsel prior to mediation (as opposed to at mediation).  This concept is so elementary that it seems unworthy of discussion.  The need to discuss fundamentals is emphasized, however, each time I am in a mediation and find a lawyer asking for my fax number or e-mail address, so that medical bills can be delivered to the mediation for presentation to the defense for the first time.  Counsel should always be mindful of the fundamentals of preparation if the goal is to obtain the best possible result at mediation.  And always remember that lawyers do not like surprises at the mediation table.  
To maximize your chances of an adequate settlement at mediation, here are some specific suggestions for Plaintiff's counsel:

  • At least 30 days prior to mediation, update all discovery responses, particularly those dealing with damages. 
  • Notify defense counsel, prior to mediation, of all damage claims with specific information. 
  • Even if damages information has not been sought or has not been sought adequately in discovery - provide opposing counsel with up to date special damages data supported by documentation.
  • If special damages cannot be fully documented within 30 days of mediation, notify opposing counsel that additional information will be forthcoming and then provide it to opposing counsel promptly upon receipt.  
  • Update and be ready to discuss the status and potential resolution of any liens and subrogation claims.  
  • Update and confirm all prior settlement offers or demands.  Be as specific as possible.
  • Be ready to discuss, consider and possibly concede weak points in your case.  
  • If you intend to make a video or computer presentation, plan to get to the mediation early in order to make sure all equipment is compatible and in working order.   Preferably you should arrive in time to do a dry run.  It is also wise to have a hard copy back up of any presentation in the event of equipment failure.  

Defense counsel should likewise be fully prepared for mediation.  Defense counsel's goal at mediation is the same as the goal of plaintiff's counsel - to obtain a reasonable and fair settlement.  Therefore, in the event plaintiff's counsel has not supplemented discovery responses or has not provided updated special damages information, defense counsel should affirmatively seek this information.  Defense counsel should update discovery responses and make clear what the defenses to the claim are, if the defenses are not already clear. Be ready to concede the weak points in your case.  Defense counsel should inquire into, be knowledgeable about and be prepared to discuss the effect of any liens or subrogation claims and should confirm all prior settlement negotiations.   The best way to address such issues is through open and honest communication with opposing counsel - prior tomediation. 
Finally, the mediator should be a catalyst in the information exchange process.  For instance, the mediator, prior to the mediation conference, might request that parties update discovery responses, update damages information, and update lien/subrogation information.  This can be done in an engagement letter, in a series of pre-mediation letters or in a telephone conference.  Good mediators also recognize that information is the key to their understanding of the case and their ability to assist in the negotiation process.
2. Don't Miss the Opportunity to Communicate With the Opposing Party.
The goal of counsel, the parties and the mediator at mediation is to reach a settlement.  The less discovery done at mediation, the more likely a settlement can be reached. 
Too often counsel will address their remarks in an opening mediation session directly and solely to the mediator.  Certainly it is important to educate the mediator about the facts and issues in a case during an opening session.  However, the most effective lawyers understand and grasp the opportunity to communicate directly with the opposing party in a diplomatic yet persuasive manner. Such communication can be the difference in reaching or not reaching settlement. 
When participating in a mediation as counsel for a party, rather than as mediator,  I like to think of this opportunity as a chance to simply have a conversation with the opposing party.  I get to explain my case to the other party.   Sometimes it helps to think of presenting your case to someone who knows nothing about the case.  I like to envision how I would present the facts and issues in the case to a high school student - so as to give them confidence in my explanation and gain an understanding of the issues.  At the same time there must be some degree of advocacy in the statement.  Exactly how to mix the advocacy with the explanation and make a cogent, convincing and non-offensive statement is left to the skill and discretion of the lawyer.  The ability to effectively communicate with the opposing party in this manner is a skill honed through experience. 
In sum, a critical component of a successful mediation is communication - communication in the form of updated accurate presentation of discovery, damages and lien information as well as direct communication with the opposing party at the mediation table.

In my experience, the most effective method employed by thoughtful lawyers is a non-emotional explanation of the client's position both from a factual and legal standpoint, given in a matter-of-fact understandable manner.  Obviously, berating or threatening an opponent directly in an opening session will not add to the spirit of compromise and settlement and will probably instead work against settlement.  Therefore, the method of delivery of communications to an opposing party have to be considered carefully.  

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