Attorneys employ a vast array of strategies in mediation. Some are good and some are bad. Below, I’ve shared some of the practices that often translate into more successful mediations in my experience. It is my hope that you’d take away at least one tip to improve your mediation approach.
Communicating Needs to Your Mediator in Advance
Some of the most successful mediations I’ve had are because of clear communication from the attorneys prior to mediation. I’m not talking about mediation statements that provide case-related information (though this information is important too). I’m referring to attorney calls prior to mediation explaining the unique needs for a particular client. Is your client highly emotional so that extra empathy is required? Does your client only respond to a stern stance? Would your client benefit by focusing on the financial risks of trial? Assess your client’s needs and communicate those to your mediator in advance. The mediator works for you; the more informed they are, the better prepared they can be to reach your client’s goals.
Share Crucial Info Early
In cases involving personal injury, new treatment records, medical bills, surgical recommendations, life care plans or other information impacting the value of a case is rarely helpful if presented for the first time right before (or during) mediation. Defense attorneys are typically required to have all pertinent information to their adjusters at least 30-45 days prior to mediation. This provides the insurer time to evaluate the claim and get authority for mediation. Last minute information can rarely be considered in settlement offers and often leads to impasse. While it is inevitable that some documentation won’t be available until the eve of mediation, it should be the exception not the rule.
Apologies, while not appropriate in every situation, can be effective in mediation openings. They are particularly effective when the plaintiff is the defendant’s insured or when the plaintiff has fallen on defendant’s premises. Apologies do not have to be an acknowledgement of fault. Sometimes the simple acknowledgement of someone’s hardship is enough to soften a claimant and become a gateway to settlement. On the flipside, I can recall countless times when the claimant’s refusal to compromise was fueled because, “they never even apologized.” There is nothing to lose and everything to gain when an apology is issued during openings, especially since the mediation privilege guarantees it will never come into evidence.
Provide All Settlement Terms Early
Many settlements only involve a number, while others require additional terms and conditions. It is a best practice to communicate the full terms of your settlement offer early, especially when the terms are common sticking points for settlement, such as confidentiality clauses, hold harmless agreements or the defendant paying Medicare liens. Nothing is more frustrating for a mediator than being on the verge of closing a deal when one party introduces an unforeseen condition on the money. Occasionally, it may make sense to withhold some settlement terms until late in the mediation. If you’re contemplating this tactic, inform the mediator early on, so you can decide together when it is most advantageous to present the additional conditions.
Prepare Your Client
Sometimes it’s the little things that attorneys take for granted that surprise (and often needlessly upset) clients at mediation. For a more successful experience, consider adding the topics below to your pre-mediation checklist.
Timeframe. Mediation can take hours. Many participants come to mediation with no idea how long it will take. If you booked your mediation for four or eight hours, make sure your client is aware it can last the full timeframe and they’ll need to be present until the end.
Opposing Counsel Speaking to Your Client in Openings. In mediation openings, opposing counsel may speak directly to your client. This can be overwhelming if unprepared. Advising clients this may occur will take away the surprise and help your client mentally prepare for the direct confrontation (and prepare their best poker face).
Small Initial Offers. Negotiating is a process. It is not unusual for the initial monetary offers to be low. Despite this, all too often, I encounter claimants who are seemingly unprepared and become incensed. While a good mediator can overcome in this situation, starting the negotiations in this posture is not optimal. To avoid the surprise, educate your client to expect small offers at the outset of mediation.
Logging into Zoom. If mediation is by Zoom, walk your client through the log-in process (and how to turn on video and audio) before the day of mediation. Zoom may be a new platform for mediation participants and attempting to navigate the log-in process in the minutes before mediation can be overwhelming. Mediation can be a stressful event for your client, so try to prevent this being compounded by technical issues that can be prepared for in advance.