I just wrapped up my first year mediating civil cases. Before I became a mediator, I spent many years in the trenches handling a broad range of personal injury, consumer and insurance litigation matters. Having participated in dozens and dozens of mediations as a lawyer, I thought I had seen it all. I thought I thoroughly understood the process. I thought I had it down. But in many ways, I was wrong.
Somewhat counter-intuitively, lawyers do not spend nearly as much time and energy developing “mediation skills” as they do with other aspects of litigation such as taking depositions or trying a case. I say “counter-intuitively” because, while few cases go to trial and most depositions have little to no impact on the case outcome, the vast majority of cases go through some sort of mediation process and often settle in mediation. One would think there would be a wealth of seminars, clinics and writings about mediation skills, though there is not.
Developing a good understanding of mediation dynamics and being able to deploy effective strategies in connection with mediation is as important as anything you do as a civil litigator. This article addresses five important lessons I learned in my first year as a mediator.
1: Maintaining a Positive, Open Relationship with Opposing Counsel is the Best Way to Maximum your Outcome.
Litigators are a tough breed. They deal with emotional issues and high stakes matters, often under extremely demanding conditions with sometimes unrealistic expectations. It is no wonder then that, from time to time, tempers flare and communication devolves to verbal combat. When things turn really bad, there is rarely a chance to recover.
While some have been taught that being combative or confrontational with opposing counsel is an effective way to achieve a good outcome, in fact, the opposite is more often true. The pattern I see in mediation is that the lawyers who treat their opponents with respect and dignity achieve the best outcomes. My biggest settlements to date—several in the eight figure range—have involved lawyers who clearly admired and even liked each other. On the other hand, I have seen plenty of negotiations derailed by personal attacks and animosity.
2: What you do Before Mediation is Often More Important than the Actual Mediation.
Lawyers tend to procrastinate before mediation, slapping together a mediation brief at the last minute and then showing up at the mediation, planning to fill in gaps when they get there. This is a common and very big mistake. There are several reasons why this is a bad idea.
For one thing, if you wait until the eve of mediation to prepare, you may find that something important to evaluating the case is missing. You may not have up to date lien information or fully understand your client’s medical prognosis, for example. It may be too late to use the information at mediation. This can jeopardize the whole process.
Second, in many cases, divulging information last minute is simply too late to affect the opponent’s settlement position. For example, in personal injury cases, insurers do not have the ability to (or simply do not) react to new information efficiently. It may take weeks before a new item of information or evidence translates into settlement dollars.
Third, early preparation gives you the best chance to be sharp at the mediation. It takes time to organize and digest case information. It takes time to develop cogent theories of the case. It takes time to formulate bargaining points. You should basically be almost as prepared for mediation as you would be for trial. You should have quick access to deposition transcripts, scene photographs, or other important data. You will look good in front of the client, project confidence about the case, and send a signal to the other side that you are ready to try the case if necessary. It will also help you shoot down bogus arguments from the other side.
3: In a World of Suspicion and Cynicism, you Must Trust the Process.
One of the most common hurdles to getting a case resolved is a lack of trust. One or both sides are concerned that making a certain move will show weakness or jeopardize one’s settlement position. I see a lot of paranoia. The fact is that one must have a certain degree of trust in the process to achieve success at mediation. Sure, on rare occasions, the other side is not acting in good faith and is essentially wasting your time. Other times, the other side hopes to get you to move off of an extreme bargaining position without responding in kind. Once in a while, you get burned. But the best thing about mediation is that you are ultimately in control of what you do. If you get burned, you can always dig in or walk away. Generally, good will is awarded at the end of the day. I have seen it over and over again.
4: There are no Shortcuts.
When I started mediation, I thought about ways to conduct mediation more efficiently. I thought about doing short mediation sessions or doing it through telephonic or video conferencing. But I quickly realized that, for the most part, the face-to- face, messy process of mediation is necessary to get the case resolved. There are at least two reasons for this. First, the parties are always concerned about moving “too fast” in mediation because they don’t want to project fear or a lack of confidence in their case. This can be a problem if a party starts at a particularly unrealistic position. Second, parties often show up with firm expectations. Adjusting those expectation can be a painful and slow process, requiring one or more parties to proceed through various mental and emotional stages including denial, anger, frustration, sometimes grief and eventually acceptance. This takes time and work. It requires patience. There are no short cuts.
5: If you Don’t Share it, it Doesn’t Exist.
Another common mistake I see in mediation is that a party has important information that it refuses to share with the other side. For example, in a personal injury case, the defense might have sub-rosa video showing the supposedly severely injured plaintiff jumping on a trampoline after the accident. A plaintiff suing a corporation might have a whistle blower lined up to testify at trial who has not yet been identified in discovery. Or I sometimes hear about anticipated expert testimony that will blow out the other side’s case, that will not be divulged until after mediation.
It should be obvious that such information is absolutely useless in mediation if not shared with the other side. If you don’t share the information, by definition, it will not impact the other side’s settlement position.
If this is so obvious, why do parties often hold back information? I often hear that a party wants to “save” the evidence for trial if the case does not settle. But this is almost always foolhardy. Given our broad discovery rules and pretrial disclosure requirements, the chances of pulling off a surprise at trial are slim to none. Plus, as mentioned above, most cases eventually settle. Statistically, if more than 90 percent of cases settle, the fear of jeopardizing a perceived advantage at trial materializes only one out of 10 times at most. The benefit of concealing information is far outweighed by the benefit of disclosure. I also hear that disclosing information will help the other side’s experts prepare their opinions. So what? Experts often learn new information on the spot or even after being deposed and then figure out how to adjust by the time of trial. Usually you want to hear the expert’s view about new information before he or she testifies at trial anyway. In the end, if the information you are “saving” is really devastating, the time to disclose it is now.
Most cases settle, often at mediation. Figuring out how to maximize your case outcome is therefore critical. Develop a good relationship with your opponent. Prepare early. Trust the process. Be patient. And tell the other side about anything material that should impact case value. If you follow these important practices, you will put your case in the best position to resolve on favorable terms. Lars Johnson