I recently gave a lecture to a large number of young lawyers talking about the ABCs of mediation; my three-legged stool: know your case, prepare your client, and be patient. I was very happy with how the lecture went. A few days later when I received the results of the survey completed by the attendees, I was even more pleased to see a high level of satisfaction with my presentation. But there was one comment that really caught my eye. A young lawyer was critical that I had not explained the basics of how to prepare for and participate in a mediation. This caused me to pause and wonder whether my so called “ABCs” were really not the XYZs, or at least somewhere in the middle of the alphabet. I asked myself whether there was something more fundamental I could offer to that lawyer and others, who like all young litigators, are faced with their first mediation. After some thought, I discovered there is much to say. There is in fact more to say than can be covered by one article. So, I will break this into at least two parts.
It is important to understand why you are headed into mediation. It is accurate, but also simplistic, to say you are there to settle your case. Mediation is not necessary to settle cases. All that is required are two lawyers having a professional conversation regarding their two clients’ respective positions and agreeing on a settlement which works for both sides. Easy, right? As we know, it is not always that easy. Mediation is for those occasions when those same two lawyers are unable to have that conversation and agree on a settlement. There are many reasons we find ourselves in this position but when we do, mediation provides a path which is not available without the help of a third-party neutral, otherwise known as the mediator. That is the why, now the how.
Make yourself familiar with the mediation process. I’ll speak mainly about mediations which take place over the Zoom platform. You may find yourself in a live mediation and if there is something unique to that environment, I will try to mention it. But Zoom is probably where you will find yourself, at least for the foreseeable future. Depending on the type of case being mediated, the attendees may be different but for this article, I’ll focus on a basic personal injury case. You will be placed in a room, in all likelihood along with your client, if you’re a plaintiff’s lawyer, or with your insurance claims adjuster, if you are a defense lawyer. The mediator put you in these rooms and comes and goes at their discretion. While you are in your room, alone with your client or claims professional, you can carry on private conversations. No one is listening surreptitiously. I typically advise participants that unless they prefer otherwise, I will not “knock” before I appear in their room. So, you can expect that the mediator will come and go as the needs of the case dictate.
A. Meeting the Parties
I often spend the first part of the morning with the plaintiff’s team. During that time, I try to get to know the plaintiff, just as the defense lawyer did when they took the plaintiff’s deposition. I want to know what their life was like before their accident, what happened, how they are now, and what they see in their future. I also hope to understand what they want to accomplish at the mediation. This last piece is not meant to hear a “bottom line.” My hope is that their bottom line is not solidified until much later in the day, after they have had a chance to consider what we will all learn from both sides during the course of the day. I am hoping to gain as intimate an understanding of the plaintiff as possible so that I can empathize and communicate better to the defendant what the case is about, what needs there are to be met, and how the case can be settled.
After that, I will jump into the defense room. Since the actual defendant may not be participating in the mediation (remember I said a typical personal injury case which means there is an insurance policy that is available and sufficient to cover the claim) I am not as interested in the claims professional’s background. They do this day after day and need little introduction. So, once we are through the pleasantries, I hope to understand better what their take is on the plaintiff’s case. Typically, there are issues regarding liability as well as damages. Discovery will have taken place and there may be depositions or documents which shape the defense view of the plaintiff’s claims. I will explore weaknesses for both sides.
I should mention that a growing and important feature of mediation is a “pre-mediation” call with the mediator. It is not required but I find it to be very helpful to have a call only with the lawyers for each side before the mediation so that if things need to be said before their clients or carrier is in the room, they can be said. Tell me whether your client or your claims representative is hard to talk to. Tell me they need help understanding the process and gaining trust in the process. Tell me the claims professional is also a lawyer. Tell me what you like about your case and what you don’t like. All of this is helpful. And it can all be accomplished during the mediation, without the pre-mediation call, but I find the temperature in the room is different during these calls and, more importantly, I have time to digest this information and use it to prepare for the actual mediation. In short, it is helpful, and you should embrace the opportunity to speak with your mediator ahead of the mediation.
B. Exchanging Numbers
At some point before the mediation, the parties are likely to exchange settlement offers. As mentioned above, mediation is not necessary if the two lawyers can do this themselves and reach a settlement agreement. But if we are at mediation, how do you get this process started?
Typically, I will look to the party who has received the most recent settlement offer to make the next offer. No one likes to bid against themselves. Rarely is there a strategic advantage to making multiple offers in the face of silence from the other side. As a mediator, I am looking for an “exchange” of offers that are marching, at whatever pace the parties select, toward the same number.
If the defendant has made the most recent offer, I will start with the plaintiff, sometimes during that first session and sometimes during a second session. The number I am looking for is not a final offer. But it is a number that makes sense, at least from the offeror’s perspective. It is a number that can be supported by admissible evidence.
Sometimes, a plaintiff will want to start with a number that will be viewed as unrealistic in the other room. “Another universe,” “out of the ballpark” might be the refrain from the defendant’s room. It’s not often the best way to start a mediation. That is not to say that the goal is to avoid that response. We can’t control how another person reacts. But it is to say, as I said above, the number should find support in the evidence. I should be able to make that offer to the defendant’s room and back it up with evidence that will probably be admissible at trial. If I don’t have that evidence, it will be hard to convince the other side that the number should be considered seriously. A number based in the evidence is the best way to get a meaningful number from the defendants when I ask them for a counteroffer.
This is the end of Part 1. Next month, in Part 2, we will explore the counteroffer, policy limits demands, and difficult people.
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 While in person mediations can be arranged with all participants fully vaccinated, Zoom mediations are also available and encouraged.
