THOUGHTS ABOUT MEDIATION

​Mediation can be two things.  An awesome opportunity to resolve a case in good faith, or an opportunity to learn everything the opposing party thinks is wrong with your case.  When attending mediation, it is important to explain to your client exactly what you are doing, what the goal is and to caution them.  You must educate your client really well about mediation beforehand, otherwise you will not obtain a good result.  Client’s make or break their cases.
            Every mediation I have ever attended began with defendants stating they were there in good faith and wanted to resolve the case as best as possible for everyone.  That the outcome should be a win/win for both parties.  Unfortunately, the offers are not always reflective of a good faith negotiation where everyone would obtain a winning outcome. 
            Be mindful and listen carefully to the rhetoric employed and compare it to the actions.  If the actions and the rhetoric do not match, the action is reflective of the true nature the party has in mind. When the mediator tells your client they are going to work really hard for them, and then proceeds to talk them down and diminish their case value by attacking the client personally, then you know that mediator has his or her own biases against the types of cases and clients such as yours that day.  The same goes for your client. 
            If your client talks the big talk and wants to go to trial when not offered his or her ideal amount, but then squirms at the notion that if the verdict is not favorable they would be liable for attorney’s fees and costs given an opposing party Proposal for Settlement, you know their sense of principle is based on the likelihood of them obtaining a monetary award.  Most of the time, if both sides have all the information that will be presented at trial, and the attorneys negotiating are sophisticated enough, resolution will happen.  Unfortunately, sometimes the attorney’s negotiating are not knowledgeable enough to figure out how the other person thinks or digs his or her heels in on their position without any movement.
            Before you go to mediation, explain to your client that you will be going into a conference room where both parties will have an opportunity to explain to the other party what their position is given the facts and law.  Explain to the client that they must be cordial.  They should expect to hear things they are likely to consider insulting or aggravating at best.  The clients should understand that if they want to resolve their case at mediation, they cannot let the opposing party know or see their aggravation over the insulting statements made. 
            After the presentations, the mediator will take the defendant to a different room and begin to travel back and forth between the two rooms.  Each time the mediator enters or leaves one room, he or she is communicating with the other party as to how the positions are changing and why the value should go up or down given the circumstances being presented by the opposing party.  At some point you must start keeping track of numbers.  You must come to a minimum or maximum (depending on whether you are defending or prosecuting) number your client is willing to resolve for.
            Once the negotiation process has evolved to where all that is being communicated are numbers alongside insinuations of leverage moving into trial, you must keep track of your numbers, the numbers coming back from the opposing side and the proportional changes between corresponding numbers.  Without exception, after the first two exchanges between the parties, I am able to determine a range within which the final offers will be.  If the final ranges are acceptable, you can cut to the chase rather quickly.  Unfortunately, not everyone understands this process and if you cut to the chase too quickly so to speak, you may spook the other side. 
            Make sure that by the time you go to mediation you have all your cost in place so that you can provide your client with proper advice as you negotiate.
            If you find that the opposing side is simply going to mediation for the purpose of fulfilling a trial order requirement, do not give some elaborate presentation that delineates all your strengths and all their weaknesses.  You should be able to perceive the opposing sides interest in resolving the case when they enter the room initially and shake your hand.  If you are not able to determine their motive upon first impression the day of mediation, assume they are not there to resolve the case in good faith. 
            If you determine the opposing side is not there in good faith to resolve the case, make your presentation short and sweet.  Stick to the general notions within your case, almost appearing weak.  The outcome of that tactic is that the opposing party will provide you with an incredibly detailed presentation that allows you to understand their entire trial strategy, including all of the perceived weaknesses in your case. 
            The strategy behind this method in mediation requires you to take avid notes while pretending to be completely blindsided with the weaknesses in your case and the strengths in theirs.  This will cause opposing counsel to feel dominant and provide you with even more detail than before.  You may even be able to ask questions.  Act like a student and opposing counsel will not be able to subdue his ego, and in turn will tell you everything you don’t know.
            After going through the process of understanding the case from the perspective of the opposing party, go home, reflect, and correct all the weaknesses in your case prior to trial.  For you to do this, you must explain this possibility to your client prior to mediation.  Otherwise, your client will not understand what happened at mediation and easily lose confidence in your abilities.  This is so because you will appear to get beaten up when you employ this tactic. 
            Mediation can be a lot of fun.  Keep a list of all the mediators you work with and rank them from least favorite to best.  Stay away from mediators that cannot hide their own biases and approach your clients from an advocacy standpoint.  It does not matter how experienced they are.  If a mediator has a bias against soft tissue injury cases and operated as an insurance defense attorney most of his or her career, the likelihood is that person will not be able to approach your case in an unbiased manner.  Ultimately, it is human nature that governs all these subtleties.