The Mediation Process – Extra Points
The enumerated points below are a series of random thoughts on the mediation process, and are some common tips I regularly pass on to lawyers involved in mediation of disputes:
1. Always try to have decision makers physically present at the mediation table. Sometimes, of course, this is not possible. Often, insurance adjusters responsible for the file are in different parts of the country, and sometimes the expense of getting them to a mediation is not justified because of the case value. Sometimes the adjuster does not want to make the trip whether or not the case justifies his or her presence. Similarly, a plaintiff might have moved to a geographically inconvenient place, or for example, in a death case, an estate might be administered by a relative far away. But it is remarkable how decision makers can hide so completely behind something as thin as a telephone wire.
On the other hand, where counsel has a good working relationship with the client and has done everything necessary to line up proper authority, mediations can be successful where clients participate by telephone, or even video. The use of Facetime, Skype and similar communications software has made participation from outside the mediation room more productive. On the other hand, nothing is as effective as having the parties present.
2. Make sure, if there are significant liens, to have lienholder input available well before the mediation occurs. This is especially important in an injury case where medical treatment is ongoing, and/or loss of income is continuing. It is not a good idea to be working on information that is six months old, and counsel do not want to be in a position of having to tell clients that their net recovery is less than what was expected at the time settlement was agreed to. In the event that liens are a significant factor in the settlement, counsel should have someone available at the lienholder to contact by telephone during the mediation process. It is often difficult to know the lienholder’s position in advance, because much of it will be predicated upon the amount of the settlement. In a bad liability case for a plaintiff, the lienholder will be more flexible than otherwise, because pushing the case to trial might result in a defense verdict, and no recovery. In the workmen’s compensation arena, things are a bit different. Pennsylvania law favors workmen’s compensation carriers and often they are unwilling to compromise in the same manner as other lienholders. In complex and high dollar cases, workmen’s compensation carriers often elect to have an attorney present for the mediation so that the lien can be taken into account with certainty.
Under any circumstances, all lienholders should be advised of an agreement to mediate and representatives should be invited to weigh in with counsel on the effect of the lien.
3. Recognize that it is not the mediator’s job to give legal advice. That said, counsel should expect to be challenged on legal points on matters where positions have already been taken. If I am given a legal memorandum to read in preparation for the mediation, and if I think a party has not properly analyzed an issue, I will have the discussion and let them know my thoughts. If a case will turn on a legal point, I will let both parties know which, in my opinion, is the better analysis.
Certainly the parties will be looking for my advice with regard to venue tendencies, case values, the manner in which cases will proceed to trial, and the likelihood of dispositive motions being granted. I regularly engage with counsel on these points, though usually the lawyers are seeking to confirm their own views on these issues. My advice, though, is not to rest on stereotypes. It is true that many venues are perceived as “conservative” or “liberal” in terms of verdicts, but changing demographics and even turnover of judges are creating new norms. I believe it is safe to say that in this regard, times are changing.
4. Usually, a settlement achieved at mediation will not be a home run for anybody. Mediation does not afford anyone everything he or she wants, either from a client’s or lawyer’s perspective. My rule is to seek and accept something that is tolerable i.e. what you can live with.
5. One of the primary advantages of the mediator as a neutral party is that client expectations can be adjusted by an outsider. As a lawyer, if one of your objectives in mediating the case is to guide your client to a more reasonable position, you should communicate that fact to the mediator. It is not uncommon for the lawyers in a case to agree on a potential result more so than will their clients. This is one of those situations where the credibility the mediator builds with the parties themselves is critical.
6. Lawyers should always be aware of the emotional toll that litigation takes on the clients. The stress is not merely apparent during a proceeding such as a deposition, a trial, or even a session between lawyer and client to answer interrogatories or to review documents. The fact is that open litigation is always a cloud over the lives of the litigants, and some are able to deal with it much better than others. An important reason to resolve a case is to remove that cloud, and counsel should always consider what kind of taste the client has for a fight. As a mediator, I can usually tell quickly whether someone does not want to be involved in a jury trial. In some cases, the fact of resolution is more important to the client than the manner in which it is resolved.
7. Make certain that the client is aware of the financial costs of litigation from the point of the mediation forward through trial and potential appeal. Often I can sit down with an offer to a plaintiff in a contingent fee case and plot for them how much more than the settlement offer they would need to recover at trial just to break even. As often, I can show a plaintiff that their share of the “last little bit” they are seeking is actually smaller than they had realized. That kind of analysis makes it easier to weigh the risk of a jury trial which might bring a defense verdict, or even a lesser verdict than the amount offered at mediation.
8. Principle is expensive in 2019. I do not suggest that anybody put right vs. wrong in the trash can. But the art of compromise is based upon practicality, and the bottom line, or net result is what is important to clients.
9. Understand the leverage. One of my favorite lessons learned long ago is “A Smith and Wesson beats 4 aces.” It is often the case that both sides of a dispute have strong positions. Eventually, one will be stronger. The most difficult assessment any lawyer has to make is whether the overall leverage points in a case are on his side or his opponent’s. Sometimes these factors are based upon the factual and legal issues in the case. Sometimes they are more practical. For example, in a personal injury case, under-valuing an injury by an insurance company might result in a large verdict against it but the effect on that company will likely not be noticed by anybody. An over-evaluation of an injury by a plaintiff, however, leads to significant risks of going to trial. In short, the carrier is in the business of risk and most plaintiffs are not. So the question becomes which party has the good hand of cards and which party has the gun.