By Christopher H. Smith, as published in the Savannah Morning News
What makes some mediations succeed while others fail? In twenty years of litigation, I have come to the table hundreds of times with the best of intentions, only to watch negotiations crater before they even get out of the gate. Now that I am a mediator myself, I have been able to identify ten attributes shared by most successful mediations. While not every favorable mediation shares every one of these characteristics, you will find them lacking in most failed negotiations. Here are my top ten tips for a successful mediation in your case:
1. Pre-Mediation Demands
Nothing gets a mediation off on the wrong foot more quickly than a demand that is five times higher than a previous ask. If medicals have gone up, fine. Another year of lost wages? No problem. But a defendant—especially an insurance company with tiered settlement approval levels—cannot meaningfully respond to a stratospheric demand with the snap of a finger. It takes time to get settlement approval—so get a head start by sending the defendants a reasonable demand well in advance of your mediation date.
2. Presence of Decision Makers
Make sure that if the plaintiff’s spouse is calling the shots as to an acceptable settlement value, then the spouse is at the table rather than on the phone. With all of the advances in videoconferencing and mobile phone technology, many busy insurance adjusters are tempted to literally “phone it in” at mediation. Resist the temptation. Nothing shows an injured plaintiff that you don’t care more than not bothering to attend the mediation. Obviously, there are cost concerns inherent in low-value auto accident cases, and these should be evaluated on a case-by-case basis. But it is far easier to bring both sides together when they are seated across a table, rather than across state lines.
3. Reasoned Openings
Your opening statement at mediation should not be the same as your opening statement at trial. Mediation is not an adversarial process, and it is not the time to pick a fight with opposing counsel. Focus on common ground, rather than your differences, and you might be amazed at the results.
4. Black-Letter Law
Your mediator may not be an expert at the legal nuances of your case. So take the time to educate him or her. Having a clear understanding of the governing law is the first step in defining the rights of the parties, which will be the first step in understanding their conflict.
5. Just the Facts
Along with your coat, check your emotions at the door. Mediation can be a catharsis for a plaintiff explaining the life-altering effects of an injury. But it is not the place to air your grievances by shouting at your former boss. A working list of stipulated facts can go a long way in establishing common ground. A business dispute over a disastrous production run does not have to be a zero-sum game if the parties can work together on a mitigation strategy based on hard data. Facts provide a logical framework for analysis of a dispute, and, as the saying goes, cooler heads will often prevail.
6. Complete Medical Records
If you want to blow up a mediation, just toss in a paper grenade made of freshly printed medical records that the defendants have never seen before. Your low-speed impact case involving a sprained ankle just added a knee replacement. To be sure, injured parties will continue to receive medical treatment, and new records do pop up over the course of the litigation. But instead of dropping the stack on the table, it may be better to postpone the mediation until the parties have had time to digest the new records and their ramifications on settlement value.
7. Completed Discovery
To best resolve a dispute, you need to know the facts that give rise to the dispute. If two different eyewitnesses potentially have two different versions of the color of the stoplight, it might be best to get their depositions in the can prior to mediation. It is not necessary to dot the “i” in discovery prior to mediation, and the parties may hotly contest the facts, but the facts themselves should be established prior to mediation. It is difficult to negotiate for real money when one is armed with only hypothetical facts.
8. No Surprises
Your opening statement is not the time to drop an evidentiary bombshell on opposing counsel. A new witness? Smoking gun report? A hitherto unseen video? Now is not the time. Parties need to be prepared to negotiate the case based on the facts of the case. Eleventh-hour disclosures do not assist a party in obtaining additional settlement authority. Share new compelling evidence before the mediation so that the opposing side can factor it into their evaluation of the case.
9. Good Faith Opening Moves
How many times have you seen one party demand $10,000,000 only to have the other party offer $10,000? Then, predictably, the plaintiff’s next move is to $9,990,000 to “send a message.” The only message transmitted is that this will be a long day. If the parties are mediating in good faith, opening demands and offers should be made in good faith. Offering less than the medical bills on a case of admitted liability is a waste of time, as is demanding ten times the medicals on a soft tissue case. Send the message that you are there to settle the dispute by being reasonable in your opening salvo.
10. Realistic Expectations
Here is where good attorneys really help the process. These lawyers have developed a relationship of trust with their clients and have prepared them for the realities of a negotiated settlement. Lawyers bemoan a “lack of client control,” but if clients are properly armed with a solid evaluation of their risk exposure beforehand, they are much more likely to be involved in the process. The parties need to start with an understanding of the likely outcomes of the negotiations in order to work towards an obtainable goal.
Keep these tips in mind as you prepare for your next mediation. You might not settle every case, but you will have a much better chance of turning a contested dispute into an amicable compromise.
Christopher “Smitty” Smith is a mediator with Miles Mediation based in Savannah, Georgia, where he is also the head of the Transportation Practice Group at the law firm of HunterMaclean. In his spare time, Smitty settles endless disputes as the coach of local middle-school football and lacrosse teams.