Why Should Plaintiffs Choose a Seasoned Defense Attorney as Their Mediator?
By Lynn Roberson
After 36 years as a litigator (and counsel for many parties in mediations, as well as a mediator myself) I have put on my neutral hat as a full-time mediator at Miles Mediation. During those 36 years, I represented both plaintiffs and defendants, but I spent most of the past 20 years as defense counsel for defendants in personal injury cases, particularly in premises liability matters involving serious injury and arising out of violent crime. As I seek to provide effective service as a mediator in personal injury cases at Miles Mediation, I am sometimes asked why plaintiffs would agree to use my services given my extensive background doing defense work.
During the time I represented defendants in personal injury matters in mediation, I would frequently ask the plaintiff’s counsel whom they would prefer to use as a mediator because it was my strong belief that, in order for a mediation to be successful, the party plaintiff needed to have some trust in the process, and feels he or she was being heard by the neutral. In addition, I felt that the plaintiff’s counsel would be more receptive to the defense arguments when presented by a mediator with whom the lawyer had a rapport and mutual respect. I found over many years that this approach to mediation was more likely to lead to mutually satisfactory results.
Given the above considerations, plaintiffs counsel would be wise to consider the rapport and credibility of the mediator when addressing the folks in the defense room. A seasoned defense lawyer has a good deal of experience talking with and advising insurance adjusters and their supervisors, as well as risk management people with self-insured companies. A good mediator has to do “reality testing” in both the plaintiff’s room and the defense room to persuade both parties to reach a reasonable resolution. If the defense attorney and the adjuster believe the mediator fully appreciates their concerns, and they respect the professional credentials of the mediator, the mediator is more likely to be effective in communicating the plaintiff’s arguments to the defense.
Also, an experienced defense attorney will have a great deal of experience in evaluating cases for defense clients and advising them on the value of a claim or suit. Such a lawyer is very familiar with the lawyers, judges and jury pools in the jurisdiction where the case is filed (or likely to be filed) as these factors can impact the settlement value of a case. A case venued in certain urban jurisdictions may have a very different value for settlement than that same case filed in a remote area. Where the jury pools are heavily weighted with generous, liberal jurors, your mediator needs to understand that circumstance the same as the circumstances where the attorney has a significant record of success. A good mediator stays abreast of verdicts and settlements in the areas where the mediated cases are filed so he or she can speak with authority concerning a reasonable evaluation for the pending matter.
Someone trying to build a good business as a mediator cannot afford to develop the reputation of a biased neutral, or business will soon dry up. All effective mediators understand their role as a neutral, and their sole goal during mediation is to assist the parties and their attorneys in reaching a resolution which is acceptable to both sides. If the case resolves, the mediator is successful, regardless of how much the case settles for. The parties are the ones who control whether or not they accept a settlement offer or demand, not the mediator.
Given all these considerations, plaintiffs and their counsel would be wise to consider retaining a seasoned defense attorney to assist them in resolving their claim or suit since that mediator really knows how to talk to the people in the defense suite.
About Lynn Roberson, Esq.
Lynn is a past president of the Atlanta Bar, the largest voluntary bar in the Southeast. She is also a past president of the Georgia Defense Lawyers Association. In 2013, Ms. Roberson received the Conspicuous Service to the Stonewall Community award. In addition, she was selected as the 2013 recipient of the Fred H. Sievert award, which is presented by the Defense Research Institute. In 2015, State Bar of Georgia’s Committee to Promote Inclusion in the Profession awarded Lynn its Commitment to Equality Award. She was recognized for her enduring devotion to the goals of promoting diversity in the legal profession and the provision of opportunities for members of underrepresented groups.