The Benefits of Trusting Your Mediator
By Scott Delius, As printed in Daily Report
Mediating parties should seriously consider revealing their settlement numbers to the mediator.
Scott Delius is a mediator with Miles Mediation in Atlanta. He has more than 16 years of experience litigating both sides of personal injury and workers’ compensation cases. He is a solo practitioner, an Afghanistan veteran and a major in the Georgia Army National Guard.
My last Daily Report article discussed how to choose a mediator. Today I’m going to take a close look at some important follow-up questions.
Who exactly is the opposition in mediation? Should you reveal your trial strategies to the mediator? What about disclosing your settlement authority? Some concepts may seem obvious, others may not, but it is surprising how often mediating parties employ tactics that are unhelpful to their cause.
Who is the opposition in mediation?
One of the main problems in mediations is attorneys that treat the mediator as the opposition instead of an ally. During a caucus, where the mediator meets privately with one side, some lawyers (and their clients) treat the mediator as the opposition. They see the mediator as a manifestation of the other side. Too often they focus on the unreasonableness of the demand or the offer.
Mediating parties should use the mediator as a conduit of information. A good mediator will give as much information to the other side as is ethically possible. Becoming angry with a mediator because the opposing side’s number is too high or too low will not advance your client’s cause.
Always ask the mediator for his or her opinion. A good mediator should give it to you anyway, but if you haven’t heard it yet, ask the mediator’s opinion whether the other side is being unreasonable. Perhaps more importantly, does the mediator think that you are being unreasonable? This is where the mediator can be most helpful by employing strategies to bridge the gap between the demand and the settlement offer.
Another unhelpful tactic is “hiding the ball” from the mediator. While it is understandable and often necessary to exclude the mediator from attorney-client discussions, it is unwise to purposefully keep important information hidden from the mediator. This is information or evidence that may potentially tip the scales in favor of one side or another, or even win the case outright. If the mediator knows about this evidence, he or she can help determine whether and how it can best be used in the mediation to help get the case settled favorably. The opposite principle is also true. Parties should confidentially disclose information to the mediator that is damaging to their own case.
Don’t underestimate the benefit of the mediator’s neutral insight. Remember, you’ve been “living” with your case for a long time, sometimes years. You may have become too close to the case, to the point that you can’t see an important issue. You may be surprised at what you’ve overlooked.
A good example is the issue of insurance. In a personal injury mediation, that’s the entire focus of the negotiations; how much insurance money will be paid to settle the case? As attorneys, we know that the issue of insurance is never allowed in court. It is such a given that the lawyers never give the issue a second thought. But have you thought about what the plaintiff thinks?
Right or wrong, the opposing insurance company is usually the focus of the plaintiff’s attention. The plaintiff probably has thought of nothing else leading up to the mediation.
Most plaintiffs with no courtroom experience just assume that they’re going to be able to talk about the supposed injustice that they have faced due to the alleged actions or inactions of the insurance company. They assume that they’re going to be able to talk about their interactions with the insurance adjusters. They assume that the jury will know the amount of insurance coverage. They assume that the jury will hear about the perceived unfairness of the settlement negotiations leading up to trial.
Of course, the lawyers know that’s never going to happen. That’s why I make a point to tell the plaintiff this important information early during negotiations, that even the word “insurance” can never be mentioned in court. Nine times out of 10, the plaintiff has never been told this information. This revelation instantly changes the landscape for the plaintiff. I have seen this interaction lead to the settlement of many a case.
I’m not suggesting that by telling the plaintiff about the insurance issue that I’m targeting the plaintiff in order to gain an advantage for the defense. I’m simply pointing out one example of how the mediator can engage with one party in a surprisingly simple way in order to move the negotiations forward.
What about your settlement authority?
I’m about to suggest what some may believe to be an unthinkable strategy. Mediating parties should give serious consideration to revealing their settlement numbers to the mediator. That means that the defense should tell the mediator the amount of their authority, and the plaintiff should tell the mediator what they will accept to get the case settled.
Some lawyers have no idea what the number is—either they haven’t discussed it with their client or their client won’t tell them. This happens equally with plaintiffs and defendants and can make for some strange caucus sessions. Other lawyers simply can’t bring themselves to reveal this information to the mediator. After all, your settlement number is your biggest secret, isn’t it?
If both sides reveal their “bottom lines” to the mediator, one of two things will happen. The first possible outcome should be obvious. If the numbers are light years apart, and if there is little chance of bridging that chasm, the mediation will probably end early and the parties will not waste time and money.
I have personally found that there is usually a different outcome. Interestingly, when both parties are honest about their bottom lines, the numbers often overlap each other or are fairly close. Of course, a mediator is not going to reveal any numbers to the opposing parties, but I will tell both of them that their case has a good likelihood of success and it’s worthwhile to keep negotiating.
Even if only one side reveals its settlement number to the mediator, it can be tremendously helpful in getting the case settled. The mediator’s task is to hit the target, and that task is made immeasurably easier if the mediator knows where the target is.
Revealing one’s trial strategy and settlement authority to a mediator may take a tremendous leap of faith for some. If you haven’t tried it before, trust your mediator with your most closely guarded information. You may find that you will be pleasantly surprised at the results.