Reflections on the Mediation Process: Ensuring a Successful Mediation
by Cliff Cobb, Esq.
I have participated in numerous mediations in my 30 plus years of law practice on both defense and plaintiff sides. The current attorney case load has become a challenge to case management and moving cases toward trial or settlement as soon as possible. More emphasis has been placed on trying to resolve cases as early as possible. Most cases settle prior to trial and at mediation as it has become the most effective and efficient method of resolving a case.
As a mediator, I reflect on my experiences from a different view, but with the purpose of maximizing the settlement potential. The probability of a successful mediation outcome can be increased significantly with each party being fully prepared, viewing the case from the other party’ viewpoint, and being flexible in creating different potential settlement outcomes. Reliance on the mediator to guide the process is important. The absence of any one of these can prevent a settlement.
PREPARATION FOR MEDIATION
Mediation preparation requires that you not only know your case and have all necessary documents to support your position, but to also know the other party’ case and evidence to support their case. Preparation for mediation should be treated similarly as trial preparation in proof of your case. It is expected that each side has fully investigated the case and conducted sufficient discovery regardless of whether the case is in litigation. The more information shared prior to mediation the better the probability for a successful mediation. A case can be derailed before the mediation begins in the absence of complete information. Also, a case can only be evaluated properly by the other side with the information provided. “Last minute” information will not allow sufficient time for each side to evaluate for mediation. This is especially true in the corporate and insurance arenas which can involve different management levels, depending on the size of the claim made, to provide the appropriate settlement authority. In a personal injury case, that means having all medical records and evidence of lost income and any permanency of injury. This affects both areas of special and general damage claims. Experts are often relied upon to provide much of this information. Expert information is normally found, on the issues of liability and damages, in the police or accident/incident report and medical records/bills. It is also important to have medical opinions on causation and specific medical/scientific information to “link up” or refute the relationship to the claim if causation is an issue. While these statements seem self-evident, the required information is absent in many cases presented at mediation. Lien information (Medicare, subrogation & ERISA issues) and litigation case loan funding to be repaid is important to know as it affects the case settlement potential.
Preparedness also means having all stakeholders present. This means plaintiff, defendant, party representatives, and insurers (liability, UM, excess/umbrella). Identification of all insurers and any insurance coverage issue is critical. Other persons of influence that are not stakeholders should not be included in the mediation process (e.g., the family member, pastor, or friend). These can only be detractors from the mediation process.
Preparedness also means preparation of your client(s) before mediation. This includes a full discussion of the case, damages, and evaluation; mediation strategy and discussion of the opposing party’s case. It is helpful to have a brief discussion with the mediator before the mediation date to include information intended to be provided at mediation and any pre-mediation demand and offer. This helps the mediator develop a “blueprint” of how best to proceed with a mediation. Any pre-mediation demand letter from plaintiff and offer from defendant should be reasonably related to the claimed damages and include exhibits referenced to highlight and support the claim. The mediation can be affected when the pre-mediation demand or offer amount are not supported by the case facts. It is also crucial not to increase the plaintiff’s pre-mediation demand or decrease the defendant’s pre-mediation offer without a change in underlying facts of the case.
OPENING STATEMENT IMPACT ON MEDIATION SUCCESS
Case information should be fully presented at the beginning of the mediation in the opening statement phase when in joint session. The case outline of each party must include all claims made and essentially provide the same information as would be given on the witness stand at trial. This often allows for a party to vent and allows the focus to be on a party without distraction. Some attorneys believe an abbreviated or summary opening statement is sufficient. This approach can be counter-productive and result in the suppression of important information that the other party may need. An opening statement also allows an attorney to show some of their trial skills. Allowing the plaintiff to speak is another important part of the opening statement phase. Hearing and seeing the plaintiff and how the accident affected him/her in the past, present, and potentially future, including any lost work opportunities or activity restriction, is part of the evaluation process needed to be presented early in the mediation process. Disclosure of pre-existing conditions is important even if not directly involved in the claim. This creates an atmosphere of “full disclosure” and credibility. All information is especially needed for the liability insurance adjuster. Conversely, the insurance adjuster should speak to show empathy and the committed attitude to the mediation process. Other topics for the opening statement should include identifying any apportionment and indemnity issues, the potential for summary judgment, discussing venue, potential juror evaluation/bias, and judge assigned to the case. The result is making an appearance of “trial readiness”, but with a mediation “mind set”.
VIEW FROM THE OTHER SIDE
Each party should view the case from the other party’ perspective. The mediator can assist with evaluating the case information when in private caucus. This often involves answering the questions of what a jury would do with the information provided and how 12 people compromise to reach a verdict. The “mind set” at mediation is different than at trial. Attorney advocacy “mind set” transitions into counselor “mind set” during mediation. The client’s “mind set” must be controlled with assistance from attorney. Forget hardened positions, flexibility and a rational “mind set” is required. This includes a compromise mentality with a reasonable settlement attitude, and patience in the mediation process.
MAXIMIZING THE BENEFIT OF THE MEDIATOR
Maximizing the benefit of a mediator begins with the tone of mediation. Each party must exercise the utmost professionalism at all times during the mediation. The advocacy mentality and language used must remain non-insulting or include any challenging behavior. The order of the day is for courtesy, politeness, and respect for and by each side during any joint conference. This allows for the crucial transition of position from “advocate” to “counselor” by counsel for each party during the mediation process.
The mediator’s role is crucial to a successful mediation. The mediator will provide a “welcoming mentality” to all. While the comments of a mediator in the opening session are for all, they are normally directed toward the plaintiff and other persons who have not previously participated in a mediation. The mediation process will normally emphasize to the parties that the litigation process is on hold, benefits of mediation versus trial, control and finality of outcome with removal of doubt on trial outcome, cost and time savings, confidentiality, monetary value/exposure, and relationship preservation as applicable. The mediator will collaborate with the parties individually to evaluate plaintiff/defendant type bias. The various party type bias includes whether the case involves an individual or corporation (cab or trucking company, premises owner), pedestrian, vehicle driver, motorcyclist, race and gender type, physical qualities (obese, attractive), and youth.
The individual private caucus sessions allow the mediator to identify the information that can be shared with the opposing party as confidentiality is always of utmost interest and concern. The mediator will recommend information to share with opposing party. “Reality” testing for each side that is open-ended and non-judgmental is a crucial part in individual caucus sessions. This includes a discussion of the strengths and weaknesses to each party’ case to evaluate risks associated with each case. Discussion of opposing party’ expectation with the other party and reasoning for the expectation is helpful to discuss and evaluate the impact of the opposing party case. This may include a discussion of a potential jury outcome if this case were tried a certain number of times. The mediator will assist the parties in thinking/developing creative solutions for mutual gain. Identifying costs of trial versus mediation resolution and attorney fee difference in demand and offer are important considerations. Other important points of mediation are to trust the mediator to know if mediation should continue or end, allow time for each party to evaluate all shared information, and identify a potential settlement opportunity during the mediation process by being prepared to accept an offer which makes sense for your client.
Last, the mediator role of facilitating/assisting parties is to develop their resolution outcome. The mediator experience as an attorney can be used as a resource by parties and serve in assisting each party with a case evaluation and negotiation strategy. Understanding that no legal or financial advice is provided, the mediator’s role is to have empathy with each party and to build trust. This includes identifying and discussing the needs and interests of each party in settlement and to reveal any party agenda that could affect the potential for a mediation settlement. The emphasis is on interests versus positions of the parties, needs versus wants associated with party positions, tangible-dollars and/or property interest, and perception of fairness in the mediation process. There are many mediation tools to know that may be used including (1) hard numbers exchanged separately or in combination with a bracket, (2) bracketing-traditional and reverse, (3) meeting with only the attorneys, and (4) a mediator number (silver bullet).
MEMORANDUM OF SETTLEMENT TERMS TO AVOID POST MEDIATION DISPUTE
Terms of settlement are included in a mediation settlement memorandum. This process cannot be taken lightly or as routine, as problems can later develop in agreeing to certain language within the settlement documents (e.g., release, lien affidavit) drafted by the attorneys from the mediation settlement memorandum. Specificity of settlement terms in the mediation settlement memorandum is needed and should identify all material terms from the case settlement. This includes naming all parties to the settlement, non-monetary terms (e.g., adoption of new policies, taking or refraining from certain future conduct or action, written or oral private or public apology, placement of warning signs in a premises case), monetary terms of amount to be paid including when paid, and the paying party and to whom paid; lump sum and/or structured settlement payment(s), apportionment issues resolved, claims released and those claims preserved (e.g., tort and worker compensation cases from same incident; non-parties), mutual release of claims as applicable, indemnification by plaintiff to defendant(s), mediation costs shared or paid by one party, attorney fees, confidentiality terms applicable, medical and insurer lien responsibility, and the timing of filing the dismissal. Last, the cooperation of all parties to settlement document implementation must be included.
PARTY INVOLVEMENT AFTER MEDIATION
Mediation doesn’t end at the mediation table, but includes mediator/party attorney contact after mediation. For a settled case the mediator will want to have an objective review of mediation process—reflection with comments and client input/comments—(favorable and unfavorable). For an unsettled case, there should be an exit strategy developed by each side. Don’t be discouraged if the case doesn’t resolve at mediation. There should be mediator/party involvement that continues the mediation process with specific interest in discussing new information expected which can be shared with all. The point is to continue efforts as case information normally does change.
SUCCESS AT MEDIATION INVOLVES ALL PARTIES
Mediation cannot be taken lightly or regarded as a routine matter by placing heavy reliance solely on the mediator. Mediation takes commitment by all parties. Mediation should only be used after the case has been fully investigated by all parties and after a fair exchange of information for each party’s case. Merely filing a lawsuit or making a time limited demand and then setting the case for mediation does not increase the probability of a successful mediation. Mediation is a “mind set” which depends on not having hardened positions. Party negotiating must be with the “mind set” focused on the potential gain and achievement and not on what you might lose or give up. Outcomes must be beneficial to all parties recognizing that each party does not prioritize every issue the same way. This recognizes that money is not the only benefit of a successful mediation, but also includes the benefits of finality, cost, control of outcome, and respect. Respect is shown in a successful mediation by each side having acknowledged and understood each party’ point of view and having negotiated in good faith during the entire process. An understanding and appreciation for the many moving parts in the mediation process and each party role will result in a higher probability for a successful mediation.
Cliff Cobb, Esq. is a mediatorAtlanta. He mediates commercial, personal injury, premises liability, product liability, auto and trucking accidents, and workers compensation disputes. To schedule a mediation with Cliff, please call 678-320-9118 or visit his online calendar.