Posted on: 4/30/2012
James F. Bleeke, Bleeke Dillon Crandall
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Prior to the widespread use of mediation as a means to settle civil lawsuits, many cases settled right “on the courthouse steps,” or even after a jury had been selected. That process was terribly inefficient and wasted countless dollars, as well as expending the emotional energy and talents of clients and lawyers for both sides.
The mediation process seeks to replicate the feeling of being at the courthouse steps by getting the parties in the same room and forcing them to confront the risks associated with allowing a judge or jury to decide their case for them. As lawyers, it is our job to help our clients and our adversaries get a realistic sense of how the case will play out at trial if it does not settle. Ultimately, it is entirely the clients’ decision whether the case settles or proceeds to trial. As lawyers, we should do everything we can to give our clients the best chance to settle their cases at mediation. When I was in-house counsel for over 10 years for a medical malpractice insurer, I appreciated lawyers who trusted me as the insurer (with input from the doctor client) to decide which cases should settle and which ones should go to trial. At mediation, I valued the lawyers who made our best case, so the opponent had the most incentive to settle cases reasonably.
The following list of “Dos and Don’ts” may help accomplish the goal of giving clients the best opportunity to settle their cases at mediation.
While no single approach fits every mediation, several important objectives generally should be targeted in the vast majority of cases to maximize the chances of getting the case resolved favorably.
1. Do let the other side feel heard. Never underestimate the importance in mediation of helping the other side to feel that their position and arguments have truly been heard and considered by your side. If the opposing client does not feel that one or more of their points are being considered, the client is very likely to shut down and be unwilling to consider any arguments you are making or to fairly consider the dollars that are being discussed as a potential settlement.
2. Do openly acknowledge your opponent’s strengths. One of the best ways to let the other side feel heard is to take the opportunity in the opening session to identify what you see as the strengths of their case. Those strengths may include a serious injury or death, some strong arguments on liability, or an excellent attorney representing them. By telling your opponent that you see and are considering their strengths, you greatly increase the chances that they will still be listening when you discuss the weaknesses of their case, or the strengths of your own case.
3. Do confront your opponents with the weaknesses of their case and the strengths of your case. After doing your best to allow your opponent to feel heard, it is extremely important that you firmly state what you believe are the strongest parts of your case, and the weakest parts of the opponent’s case. This is what truly brings the other side to the courthouse steps. Let the opposition hear what you will be arguing to the jury or judge, and explain how you believe the jury or judge will respond, and why. This is your chance to be an advocate for your client. Far more cases settle at mediation than ever get to trial. So use your advocacy skills to persuade your opponent respectfully that their case may not be nearly as strong as they had thought. This is not something you can rely on opposing counsel to do. They may fear alienating their client; or worse yet, opposing counsel may be responsible for their client’s unrealistic viewpoints in the first place. Even the mediator is not likely to state your client’s position as persuasively as you can. Take the key points that you truly believe in on behalf of your client; and show the opponent why you believe in them so strongly.
4. Do have a plan for the mediation. I have heard clients say that “mediations never go according to plans.” I hope that is not true of mediations in which I am participating. Of course, it is impossible to know exactly what the opposition wants or will accept at mediation. However, it is not impossible to provide a pretty accurate estimate. Therefore, it is very important for the lawyer to tell his/her client before the mediation what resolution the opposition probably is seeking and to provide a plan for how to get to that point, or be prepared to walk away if the opposition’s demands are not reasonable. Some flexibility is definitely desirable, but that does not mean that a strategy for where to start, how slowly to advance and when to get to serious numbers, is any less important than a detailed strategy at trial.
5. Do show that you have a heart. Far too many lawyers seem stuck on wanting to look professional or smart at mediations, and elsewhere. It is important to remember the mediation “IS NOT ABOUT YOU!” It is about your client; and it is your client’s chance to decide whether to settle the case or go to trial. (And if the case goes to trial, the trial also “IS NOT ABOUT YOU!”) Lawsuits necessarily involve emotions and hurt feelings. It is foolish to pretend those don’t exist. Cases have a much better chance of settling if the lawyers let their guards down and become real people and truly talk with the opposition about the real issues in the case.
6. Do resolve Medicare lien issues before mediation. Unaccounted for liens can be a huge obstacle to resolving cases that the parties otherwise could settle. To give cases the best chance to settle, it is best to obtain and share all lien information, and especially the final payment letter from Medicare, well in advance of the mediation. Often, the parties can work together to demonstrate to Medicare that many amounts in the final payment letter were not actually caused by the incident in question. It is generally better to delay the mediation until the lien issues can be resolved, so that parties do not travel and spend a day that turns out to be futile, due to issues that are beyond the control of the parties. Mediation is intended to truly allow the parties to control their own destinies in terms of settlement vs. trial. Resolving lien issues helps to keep the parties in control of whether the case will settle.
7. Do, in a big case, use photographs, PowerPoint or poster boards to make your key points. Again, use your advocacy skills and preparation to take your opponent as close as possible to the courthouse steps. By the time you get to mediation, you should have your trial themes and key exhibits well established. Go ahead and use them in a tactful way that delivers the message without alienating the opposing client.
1. Don’t waive opening remarks. There are rare exceptions to this rule, such as some divorces or other cases where the emotions are so high that meeting in person will just pour gasoline on a fire. However, in most cases, truly developing that “courthouse steps” feeling requires each attorney speak directly to the client on the other side. After all, if the case does not settle, the clients will be forced to sit in court and hear those same arguments being made publicly to a jury or a judge. As advocates, we should not pass up the one opportunity short of trial to talk directly to the client on the other side to let them hear our perspective on the case.
2. Don’t alienate the opposing client. Opening remarks require some tact, which is not always the greatest strength of some lawyers. Your arguments must be phrased in a way that they are most likely to actually be heard and considered by the opposing client. Again, starting with the opponent’s strengths can open their minds to your discussion of their weaknesses or your own strengths. Also, talking about your own experience of how juries or judges in similar cases (or mock juries or focus groups) have viewed the issues can also be a disarming way of introducing another perspective on the issues. This can be a tough line to walk, but it is very important to “say what you need to say” without unnecessarily rubbing the opponent’s nose in the weaknesses of their case.
3. Don’t be afraid. Fear has no part in a trial lawyer’s mindset. If the opposition senses fear, you are dead. It is totally appropriate to be “concerned” about the weaknesses in your case and the strengths of your opponent’s case. However, by the time you get to mediation, the lawyer should have developed strategies for the best way to deal with those issues, just as though the case were truly on the courthouse steps. If no plan exists to address a particular issue, the other side is likely to sense that during mediation, and exploit it to the detriment of your client.
4. Don’t just leave it to the mediator to make your points for you. As the lawyer, you are the advocate. You should be best prepared to state your client’s position as credibly as anyone. Let the other side feel how much you believe in the key points in your case. While the mediator can give an objective viewpoint that the opponent may take more seriously, why not let the opposing client actually feel a little like they will feel at trial? This merely increases the likelihood that trial will not be necessary.
5. Don’t give up if the case does not settle at mediation. Some cases just are not meant to settle at mediation. It is best to tell your clients in advance if you think this is one of those cases. Sometimes mediations serve the purpose of getting the parties as close as possible on that day. Or sometimes mediation can identify one or two sticking points that keep the case from settling that day. If your client is still interested in exploring settlement, don’t let the case fall off of your radar screen. The week or two after the mediation may be the next best opportunity to get the case resolved. Try to resolve the sticking point issues, with the goal again being to give all clients the best opportunity to decide whether they want to settle their cases.
Jim F. Bleeke
Bleeke Dillon Crandall, PC