A Recipe for Resolution

There is no question that the recipe for a successful mediation is determined on a case-by-case basis, but there are some necessary ingredients and will too much or not enough of one ingredient ruin the end result? Experienced mediator and former federal judge Richard B. McQuade Jr. shares his thoughts on everything from timing, preparation and opening statements to common mistakes.

LM: Are mediations more successful at any particular stage of the case? Do pre-suit mediations tend to be more successful because the parties have not incurred the costs of litigation? Is it worthwhile to mediate a case after suit is filed but before discovery, or do you find that parties hold back at that point because they are unsure of what the discovery process might reveal about their case?

McQuade: In clear liability cases, whether they are transportation, wrongful death or others, I am seeing a growing trend where mediations are arranged before litigation. In cases involving liability issues, mediation prior to filing a motion for summary judgment is beneficial due to the risks facing both parties. The risk to the plaintiff is, of course, that their case could get thrown out of court. The risk to the defendant is that it might have significant damage issues if its motion for summary judgment is denied.

LM: What advice do you have when it comes to selecting a mediator?

McQuade: Once you have determined that your case is ripe for mediation, carefully select your mediator. Plaintiffs often wish to choose the mediator, but it is advisable to discuss a handful of options so that all the parties feel they were involved in selecting the mediator — it gives them a sense of control over the process. A strong mediator with experience in litigation is valuable because both sides tend to trust their guidance through the process and their opinions regarding the value of the case. The mediator’s style is important. The parties should consider whether a potential mediator facilitates a settlement by delivering each side’s message or in helping each side assess their case and decide their position. Ultimately, both parties must trust the mediator, or the odds of resolution are decreased.

LM: What about the style of a mediator?

McQuade: There are different styles to mediation and you may, because of your client’s sensitivity, want a mediator witha certain style. If a party is reluctant to settle, you might want a mediator who has experience with that particular type of case and is willing to give advice to that party as to when and how the case ought to settle. In other words, to reinforce how the lawyers have been advising the client. Research the mediator’s background or proclivities by calling individuals to ask about their experience with the mediator and how the mediator works.

Some parties want a number out of the mediator. As a part of the mediation, they want the mediator’s assessment of the liability situation and damage situation and an opinion as to where the mediator thinks the case should resolve. Some mediators are reluctant to do that. They don’t see that as part of the mediation process — they’re purists. I don’t have a problem with it. Frankly, it’s hard for me not to deduce a range for the case after reading the mediation statements. I have run into situations in which a party’s lawyer was offended by the fact that I gave a number on the case, but that is done privately, in caucus, and is not repeated to the other side. If the mediation fails, I will meet privately with each party and their lawyer and tell them my assessment of the case. I have found that most parties are interested in the mediator’s assessment of the case.

LM: Clients and claims handlers are typically seasoned mediators when it comes to transportation. They are keenly aware of the economic realities of litigation and have analyzed the exposure, including jury verdict and settlement values provided to them by counsel. What else should be done in preparing for mediation?

McQuade: Be prepared about the facts, but also the applicable law. A skilled mediator will challenge a party on the admissibility of a questionable piece of evidence and the lawyer better be prepared to defend it. If there are close issues of fact and motions for summary judgment are pending, a skilled mediator is going to challenge both sides, if only to demonstrate to the clients that there is risk. Risk is the primary motivating factor that drives mediation settlements. So, you not only need to be skilled on the law, but you need to be able to tell the mediator why this piece of evidence that has questionable admissibility is more likely than not going to be admitted, and why a judge is going to resolve a fact in your favor so that motions for summary judgment will or will not be granted. Be skilled on the rules of evidence and the rules of civil procedure and how they apply to your case.

LM: What else needs to be considered?

McQuade: I will ask the parties, other than money, what do we need to address? Is there Medicaid or a trust involved? Consider what else you need other than just a release and a dismissal of the case. If other issues such as confidentiality, indemnity, nondisparagement, etc. are important, they should be a part of the negotiation.

LM: Typically, the next step is to draft a mediation statement. What is a good recipe for a mediation statement? Should a defendant save any point for the mediation session? Is it helpful for the parties to exchange their mediation statements or should they be kept confidential?

McQuade: Educate me (the mediator) — tell me exactly what your position is with regard to liability and damages. I prefer that nothing is held back. Most mediation statements have confidentiality clauses so I am not permitted to discuss them without permission, but I don’t know how a party can effectively conduct a mediation in secrecy. It does not make a difference whether the parties disclose their mediation statements to the other side prior to the session because I always invite opening statements and I ask the lawyers to make a clear and concise statement of their case.
Transportation cases are unique in that the applicability of federal regulations gives a whole new dimension to liability issues in transportation cases that you don’t have in the ordinary accident case. Compliance with federal regulations is often an issue. Of course, some causal relationship between any violation and the occurrence giving rise to the claim must exist. Attorneys handling transportation cases on the plaintiff side generally seem to be very conversant with regulations that apply to the industry. If your mediator is not familiar with these regulations, you need to educate him or her because it is a dimension that you don’t often see. The industry is particularly vulnerable to punitive claims and violations of regulations give rise to these punitive claims. In addition, the regulations pertinent to the industry play into what juries think with regard to liability and damages. Educate the mediator through your mediation briefs.

LM: When the mediation date arrives, the mediator typically begins by conducting a joint session to advise the parties of his or her role. Some mediators encourage the parties to make opening statements during this joint session. Often, clients want the parties to make opening statements, but defense attorneys do not. Are opening statements advisable? What makes for an effective opening statement? Is there anything that should be left out of the opening statement?

McQuade: I know a lot of plaintiff’s lawyers think opening statements are a waste of time because the defendant’s insurance company has a predetermined amount of money to offer so it makes no difference how effective the opening statements are. That’s wrong. There are two things that happen during opening statements: the plaintiff assesses the defendant’s lawyer and the client is introduced. Plaintiff’s lawyers will tell you that 90 percent of their case is their client. Opening statements are valuable for a third reason, and this is because for the first time, the client is going to hear what the other side is saying without the message being filtered through their lawyer. I think that is valuable whether the client agrees with that message or not. They get to assess the lawyer and consider what it is like to be cross-examined by him or her in court. It also gives the mediator a transition into his or her first caucus with the plaintiff. Opening statements must be particularly professional and not designed to upset the other side. They are designed for counsel to make a firm and effective statement of their position.

I have seen opening statements make or break a case. What does not work are ill-prepared opening statements — statements that demonstrate that the law and facts of the case have not been mastered by the lawyer. Opening statements that incite the plaintiff’s lawyer are also not effective.

Emotional opening statements by the plaintiff’s attorney are typically made in wrongful death cases. It is best to listen to these statements and understand their purpose. They are not so much for the defense’s edification. They help the defense understand the loss and how it will be painted to a jury. It is not a waste of time. It has a purpose in the mediation process to give the defense a feel for the decedent and to allow the people who have suffered the loss to talk about the loss. If there are photographs or a presentation of some sort, pay attention and don’t dismiss them. It is your opportunity to see what the jury is going to see. Pay attention to opening statements and understand their purpose.

LM: What mistakes do attorneys and transportation clients tend to make at mediation?

McQuade: Occasionally, the assessment of the damages is not complete. Or, there is a lack of familiarity with the jurisdiction. The decision maker might not have a good sense of what the judges and juries are doing in that jurisdiction, and that does vary somewhat. Most of the lawyers and representatives I have met have been pretty well prepared in transportation cases.

There are times when the defendant’s representative does not have the authority needed to settle the case. When it comes down to making a phone call, you know that the case is going to settle at some point. Generally the insurance representatives roundtable the case and they’ve assessed it prior to mediation. Even if they do learn new facts during mediation, they do not change their position until they have assessed new facts internally. When a phone call is made, the parties are in the same dimension on the value of the case so it is generally not a problem.

However, if the insurance representative has to make a phone call before every move, it is not conducive to settlement and causes the mediation to drag on. I have seen that in only a small number of cases. Sometimes the mediator has to smooth it over with the plaintiff’s side but I have never seen anyone walk away from a mediation because of it.

I have run into situations where the language of the release has been a real issue after the mediation. When I settle a case, I write up a short statement memorializing the agreement between the parties. During my experience handling domestic relations cases on the state bench, I saw too many domestic relations settlements go south, so I made a habit of calling in a court reporter when a case was settled and putting the settlement on the record. That habit has carried over into my mediation practice. In fact, in complex cases, I still call a court reporter to record a settlement. I insist on having a written document that has been signed by the parties. In one case, the attorney sent a proposed release that had a confidentiality agreement in it and the plaintiff’s attorney objected to its inclusion because it was not discussed during the mediation. Get it in writing at the mediation. Ask the mediator to put pen to paper and write out the bones of the agreement. Then, you’ve got something enforceable in court.

LM: Any other advice on mediations?

McQuade: If the plaintiff’s motivating factor is not clear, utilize the mediator to determine what it is or why the plaintiff is reluctant to accept what you feel is a fair offer. When these factors are identified, a creative offer can be formulated to entice a settlement.

While there is no precise recipe for a successful mediation, these tools will help you determine the right ingredients and the appropriate amounts for reaching a resolution.