Mediation is an often used tool to bring resolution in modern litigation. However, good mediators are surprisingly hard to find, and ineffective ones are often little more than runners sending offers and demands from one room to another. Although parties are brought to a common location, opening statements are increasingly rare. Interaction and dialogue are kept to a minimum. If the parties do not interact, coming together at a common location becomes nothing more than a convenience to the mediator.
Good mediators do more than deliver offers and demands. They listen to the parties and communicate an opinion about the weaknesses of the case. In essence, the mediator is a “manipulator.” They know the strengths and weaknesses of the case for all parties and use that information to manipulate the offers and demands. Effective use of mediation by claims and defense counsel at any stage depends on the ability to manipulate the manipulator. Below are the bronze, silver, and gold medal efforts for before, during, and after mediation. Gold medal efforts are the ones that get the mediator working for you and working on your opponent, not the other way around.
Pre-Mediation
Good mediation preparation can help minimize the mediator’s critiques of your case. Much like at trial, the most prepared party will have the upper hand and will be more effective on the day of mediation.
Bronze — Copy and paste the latest litigation report and make a few minor changes to preserve confidential information. Provide the report to the mediator the day before the mediation.
Silver — Write the mediator advising him of the basic facts and the justification for your position. Provide a history of prior negotiations. If it is your opponent’s turn to make the first move at mediation, indicate that in the letter. Also, concede any obvious weaknesses in your case before the mediation. Save some information that is beneficial to your case for caucuses with the mediator.
Gold — Prepare an effective and persuasive report. In addition, provide the report on time if not early. Have counsel hand deliver the report to the mediator and spend a very short time discussing the case, letting him know you look forward to working with him. Establish telephone contact with the mediator the day before the mediation. If possible, have both the claims professional and counsel be a part of that call. Calculate your predicted offers and demands. Have something (photograph, medical record, case law) prepared to give to the mediator with each offer that he can use to manipulate your opponent. Research the verdict history for similar claims in similar jurisdictions.
Mediation
The perception that mediations have a lot of down time when the mediator is not in your room is not always correct. There is always something to do that will encourage the mediator to keep pressure on your opponent.
Bronze — Show up on time with your file in hand and a copy of your pre-mediation report. Bring other files to work on when the mediator is not in your room.
Silver — Arrive early to get some additional time with the mediator before your opponent arrives. This is your chance to get in an early effort to influence the mediator and get him working for you.
Gold — Arrive early. In addition, be sure to get some face time with the claimant. Many mediators will discourage formal opening statements, particularly in smaller cases. If that is the case, insist on greeting your opponent face to face, even if you have met them previously. In each meeting with the mediator, ask a question you want answered by the claimant and provide a tangible item for the mediator to carry to opposing counsel. This can be a persuasive trial exhibit, a medical record, a verdict history for similar claims and injuries, or anything that supports your position. Finally, if at all possible, bring a checkbook to the mediation and be prepared to send any final or near final offers on a check.
Post-Mediation
If the case does not settle on the day of mediation, it is still not too late to use the mediator to your advantage. This is particularly the case if the mediator is working for an hourly rate and not a flat rate.
Bronze — Take your file and go home. Wait for the mediator or opposing counsel to call. Prepare for trial.
Silver — Give the other side some time for communication with the mediator after you leave. If you leave the mediation first, this often will take place while the claimant is still there. It is at this time that the claimant or claimant’s counsel will tip their hand and hint at their final number. Follow up with the mediator in one week.
Gold — Use additional discovery to address questions that arose in the mediation. This may mean taking a witness deposition or sending paper discovery. Consider any obvious concessions the claimant failed to make in the mediation and consider filing a motion for partial summary judgment on those issues. After this is done, make contact with the mediator and provide an update. Give him a reason to reach out to your opponent. If the case has settled at mediation, be sure to provide payment in advance of the promised date. Contact the mediator after the conclusion of the claim and express your thanks. That will leave a lasting positive impression for the next mediation.
For gold medal mediation results, both claims and defense counsel must think strategically about how to turn the mediator into their voice to the claimant. Well planned and purposeful interaction with a hard-working mediator can help resolve a claim early and fairly. However, just as gold medal winning athletes put forth maximum effort and training, effective mediation results take preparation, strategic thinking, and dedication.
Jim Pattillo is a partner with Norman Wood Kendrick & Turner, an Alabama-based law firm. He has been a CLM Member since 2010 and can be reached at jpattillo@nwkt.com, www.nwkt.com.