Last month, I had the pleasure of presenting at the 26th Annual Northwest Dispute Resolution Conference, held at the University of Washington School of Law. I spoke on a subject that has become near and dear to me over the years, honesty. The following is an excerpt from my written materials.
When I began my litigation practice more than 38 years ago, mediation of tort claims was in its infancy. We brought our disputes before the judge who was assigned to try the case. I recall more than a few instances where the judge advised one party or the other that if they did not get “on board” with settlement, they should remember that the same judge would be ruling on their pre-trial motions and the evidence during trial. That felt like a threat, probably was, and sometimes it worked. We have come a long way in the past 35 years. And mediation has become a profession unto itself.
So what are effective steps to resolve your case at mediation if you don’t have the trial judge hanging the sword of Damocles over your opponent’s head with a proverbial thread? I will explain a few that have proved effective in cases I have mediated both as an advocate and as a neutral.
Then I propose to discuss in more depth, a power I consider an extraordinary benefit in mediation, especially where there are complex issues, complicated parties, and conflict is running in the red. That is the strength found in accepting your vulnerabilities and the protection found with honestly assessing your case. I have become a firm believer that these tools set up a case for its best chance of resolution at mediation.
A. Mediation’s Three-Legged Stool
1. Know your case.
When I was coming up as a young trial lawyer, one of my mentors told me, “He who knows the facts best, wins.” As we prepared a catastrophic injury case for trial, I watched as he meticulously reviewed documents and depositions, copiously noting both helpful and unhelpful evidence. He prepared his cross examinations carefully so as not to overstate a witness’s testimony in case it was necessary to impeach. Documents were organized in a way that they were always ready to be provided to a jury if they became important. In short, he trained me to understand that if I had the facts at my fingertips, the chances that my opponent could surprise me were very small and when we handed it over to the jury, we rested easy that we had put on our best case.
The same is true for mediation. If you have a tight grip on the facts of your case, you can arm your mediator with the information they need to discuss the case with the other side. And when the other side sends the mediator into your room with a new fact or an interesting case, you are prepared to meet it with better facts and better case law.
2. Prepare your client.
Attorneys, both plaintiffs and defendants, are challenged to divine what a case is worth. Hopefully, that effort starts well before mediation. I have found over the years that for most cases I can predict a case’s value within 90 days. Plenty can happen to change that evaluation, but I’ve found it is a good idea to measure any subsequent review against my early evaluation and ask myself why the valuation needs to change.
The advantage to anchoring a valuation early is that you can begin to discuss it with your client. For the defense, that allows your client to plan for that number, whether that is with personal assets or, more likely, insurance.
About insurance companies, it is important to understand that they are required to set reserves based on their conservative evaluation of what amount of money may be at risk. If state insurance regulators determine that insufficient reserves are set aside, penalties can be assessed against the company. So it is no surprise that early evaluations are helpful to insurance companies. And if the numbers change, it is important that the carrier have that information to consider whether they should increase or decrease the reserve amount. That is why it is a good idea for plaintiff’s lawyers to keep the defendant’s insurance company well informed about the value of a case.
For plaintiffs, especially those who are not experienced in litigation, it is likewise important to let them know what a case is worth and to keep their expectations in check. How many times have we seen a client lose faith in their attorney when for the first time at mediation their attorney is telling them that the case is worth significantly less than they had discussed previously?
For both sides in mediation, counseling a client with reasonable expectations is a valuable predicate to success. To accomplish that, it is important that you look beyond the case value and consider the settlement value as well. In other words, a case may have a value for mediation that is different than the value if they are successful at trial. For either side, there are costs associated with preparing for trial, not the least of which including expert fees, that drive up or down the settlement value. And for either side, there is the risk that the case will not be decided by a jury the way you hope. In other words, you may lose.
And finally, it is important to understand that regardless of the case value or the settlement value, there may be other factors that change the value. This is often seen in cases where there are liens or where one side or the other has already invested extraordinary amounts to prepare for trial. In those cases, the settlement of a case at mediation requires that these expenses be addressed.
Recognizing these factors, the case value, the settlement value, and extraordinary expenses that stand in the way of an otherwise solid valuation are imperative to a successful mediation. It destroys momentum as well as good will when one side has not addressed these factors before coming to mediation.
3. Be patient and keep an open mind.
Years ago, the same judge who I mentioned earlier, told me about the importance of patience at mediation. He said that parties to a lawsuit want to be heard. For some people it is fair to say they want their day in court and mediation is designed to take that away from them.
In that vein, it is important to allow mediation to be a process. A very experienced plaintiff’s attorney told me recently that in another case, the mediator retained by the parties successfully brought the parties to an agreement and the case settled. His client, however, was not happy with the mediator. The reason he was upset was because the mediator spent most of the time telling the attorney’s client what the case was worth and where the case needed to be settled. The mediator’s technique ignored an important need of the client. The client would have probably loved the mediator if the mediator had allowed the process to reveal the solution instead of the mediator announcing the solution, almost by edict.
Time takes time. Most mediations that I have been involved in need a certain amount of time for the process to work. If you ask a party too early to put up their best number, they are likely to view that as a poor strategy. While it doesn’t need to be a simple exchange of numbers that ever narrow the gap, it often requires an acknowledgement of the features of the case, a rational give and take that allows each side to express their views and be heard. As I discussed in an earlier article, it is important that each side allow for the possibility that the other side may have a valid point.
The mediator’s job is to express those points to each side in a way that is not threatening or divisive. It is the mediator’s job to bring the information into a discussion so that each side can evaluate and reevaluate their positions repeatedly throughout the day. By keeping an open mind, we allow ourselves to see a path to resolution especially if that resolution looks a little different than the one we envisioned at the beginning of the day.
The mediator’s job is to help you see and consider these alternatives. And if you have prepared your case well, know your facts, understand the law, educate your client about the case/settlement value, and let the mediation play out with time, then chances are good that you will settle your case at mediation.
B. Vulnerability Is Your Sword and Honesty Your Shield
In addition to the balance earned from a three-legged stool approach, understanding the value of acknowledging where you are vulnerable brings great strength to the positions espoused by each party. As discussed below, this approach empowers not only the party and their counsel, but also the mediator who necessarily is asked to explain each party’s approach to the opposing party.
When I was a young attorney, my mentors taught me that litigation was intellectual warfare. I needed to “gird my loins” and prepare for battle. Litigation was a chess match where pawns were exchanged and every move was to protect the King, that being your client. Before heading off to a hearing, one senior partner loved to say, “return with my shield or on it.”1
The language of litigation is conflict. “Complaint,” “Answer,” and “Affirmative defenses.” We prosecute a claim. We defend a client. We argue, and argue, and argue. So, it is not surprising that after months or years of fighting, it is often difficult to set aside our differences and find common ground to sign a declaration of peace.
The question I’ve asked myself over the years is whether that really is the best approach to litigation. And even if the battle analogy is appropriate to the reality, does the same hold true for mediation when you come together with your opponent and working with a third-party neutral, try to agree on a solution? I think it does not.
I can’t tell you how many mediation briefs I have read where the one counsel or the other offers no quarter regarding liability or damages. The case is “cut and dried,” “liability is clear and should not be contested,” or worse, “We do not see any exposure to our clients, but we come in good faith in hopes of resolving this case with your help.” It is as if we believe that any acknowledgement that the other side may have a winning argument leaves us fully exposed and unable to defend ourselves from opposing counsel’s attack.
During a recent mediation, brought by an estate for wrongful death, opposing counsel refused to discuss the case value in the context of his client’s own comparative fault. His point, which he made vociferously in front of his client, was that discussing comparative fault would not get the case settled when defense counsel refused to offer money in what he described a reasonable range.
Several rounds were spent talking about damages only. The parties were far apart. And after a long day, the case did not settle. The numbers never got close. The parties were at cross purposes. Defense counsel was willing to talk numbers but not without an acknowledgment that the plaintiff bore a certain amount of responsibility. The plaintiff’s attorney, however, could not bring himself to broach the subject of comparative fault because the numbers out of the defendant’s room were not what he considered reasonable. In addition, he kept insisting that the defendant refused to take any responsibility for the accident. Unfortunately, his client was happy to stay in that echo chamber and did not push back, even in the face of the defendant’s obvious willingness to discuss shared responsibility.
Trust me when I say the evidence developed by the defense left little doubt that the decedent was partially, if not mostly, at fault for his tragic demise. In fact, since that failed mediation, during subsequent discussions, plaintiff’s counsel admitted that a jury was likely to conclude that the decedent had some responsibility. But he remained convinced that at trial the defendant would argue for a defense verdict based on an argument that it had no fault. So, whether out of a need to save face in front of his client or a misguided strategy to drive the settlement offers up by refusing to negotiate from a multifaceted position, plaintiff’s counsel lost the opportunity to settle the case.
Why did this happen? Why would he not agree to address liability and comparative fault? I think it is because, like so many others, both on the plaintiff’s side as well as the defense, he was unwilling to be vulnerable. He refused to be honest with himself, his client, and the mediator.
1. Vulnerability is your sword.
Vulnerability, being honest, expressing empathy may feel like you are taking a risk that opposing counsel will see that as weakness or even a tacit acknowledgment that their case is stronger than your own. But it is quite the opposite. These three virtues are a sure-fire way to allow you to show strength because you are willing to acknowledge your weaknesses.
Vulnerability is your sword because it increases your credibility. Acknowledging that the other side has a strong argument or that you have a weak position demonstrates that you are confident enough in your case to concede certain points. The alternative, holding fast to a position in the face of overwhelming contrary evidence, simply sends the message that you are not capable of reasonably evaluating your case. You will not be negotiating from a position of strength even though when all you do is express strength. Openly admitting the shortcomings of your case allows you to stand firm when discussing the strengths of your case. It adds to your credibility when you ask the mediator to carry arrows to the other room that truly explain why you are well positioned to make the offer you instruct the mediator to deliver.
This level of vulnerability is hard. As I mentioned at the outset of this article, we are trained to fight. We are trained to win. In my own firm, like most firms, settling, compromising is sometimes viewed as a sign of weakness. One of our former attorneys, a trial lawyer for whom I have a deep degree of respect, painted the image of a chicken on a piece of cardboard. And when it became known that an attorney in our office had settled a case, the chicken painting would mysteriously appear attached to the door of the settling attorney for all to see. This was done in the spirit of fun and not to ridicule. But the not-so-subtle message was there nonetheless: chickens settle cases. Remember what Sparten mothers said, “with your shield or on it.” So, it should come as no surprise that we find it hard to be vulnerable and show any weakness to our opponent. But it works.
2. Honesty is your shield.
Honesty is your shield because honesty is impenetrable. When you are in mediation, like in life, and you strive for scrupulous honesty, a good mediator will see that and use that to your advantage. When I walk (ok, click) into the other room, having absorbed your honest assessment of a case, heard you take stock of your strengths as well as your weaknesses, I am emboldened to carry your message, whether that be a legal argument or a settlement offer. It is your greatest strength.
When the other side is faced with this level of honesty, it is impossible for them to argue effectively otherwise. They may not like your position. For any number of reasons, they may not accept your position. But their ability to respond with a counter argument that carries any weight is very difficult. And they will see, even if they won’t admit, that you have a strong position.
Of course, this does not win the day all the time. There are too many variables to succeed with such a simple formula. But even though settlement of case is often driven by subjective evaluations of general or consequential damages, my experience informs me that when attorneys are able and willing to use vulnerability and honesty as their weapons of war, they will more often than not come home with their shield, rather than on it.
Eric Gillett is a founding member and managing partner at Preg, O’Donnell & Gillett. Follow him on LinkedIn at https://www.linkedin.com/in/eric-gillett. He is licensed in Washington, Oregon, and Alaska. He has tried dozens of cases to verdict and mediated hundreds more. A navigator of resolutions, he is a commercial mediator and can be contacted through his legal assistant, Jasmine Reddy, at 206.287.1775 or jreddy@pregodonnell.com. You can also reach him through his website at www.gillettmediation.com and his email at eric@gillettmediation.com.
1 The phrase “with your shield or on it” is attributed to mothers of Spartan warriors sending their sons off to battle. If their sons returned without their shield, it meant that they were a coward and had dropped their shield to run for safety rather than fight and die honorably, their bodies carried home on their shields.
