Some helpful hints for mediators. - Mark P. Loftus
Any lawyer that is involved in litigation of any type has, by now, been introduced to the concept of mediation. Mediation is an increasingly popular form of “alternative dispute resolution” which is legalese for “let’s avoid that whole trial thing”. Mediation involves the voluntary gathering of trial lawyers and parties in an effort to settle a case. There is no evidence offered, exhibits marked or arguments made. Instead, a mediation is essentially a protracted negotiation between motivated litigants. The mediation is typically chaired by a former judge who presides over the negotiations. Before the actual meeting, the parties submit position papers that summarize the relevant law and evidence, which the judge will review to formulate some ideas as to settlement range. Over the course of several hours, a negotiation will take place, prodded along by the mediator. With a little luck, the case may settle for a fair number. Over the last 15 years or so I have seen LOTS of mediators. Some were very good. Some not so much. The following are some suggestions I would offer to all mediators and potential mediators.
1. Read the submissions. Yeah, I know, seems pretty obvious. But I recently mediated a construction site injury case before a highly recommended mediator. Within 2 minutes it became pretty clear to me that he hadn’t read my submission. Yeah, I get it. You are really smart. You presided over lots of 7 figure cases when you were on the bench. You don’t have to read the submissions when value barely cracks six figures right? Wrong. Your firm got a big deposit from myself and opposing counsel. That Mediation Agreement indicated the deposit would cover your time preparing, which I assume means actually reading my submission. Sure, you can choose to ignore the submissions if you like. That decision however, just causes us to chew up valuable time as you learn the case on the fly. And is the refund check[for the “preparation time”] going to be mailed out soon?
2. Be nice. I once had a mediator tell my client he would “be stupid not to take the money.” Um, beg your pardon? Sure my client may not be as smart as you, your Honor. He doesn’t do mediations three times a week, like you do. And he hasn’t sat through dozens of them like the lawyers. In fact, as I think about it, my client has NEVER done this before. He needs to achieve a certain comfort level in order to make an important decision about money. Pointedly questioning his intelligence certainly isn’t going to help him get there.
3. Have a little humility. I had a medical malpractice mediation several years ago involving injuries my client suffered when his bowel was perforated during a hernia surgery. Defense counsel, an honorable guy, had submitted what he considered helpful[i.e. low] jury verdict reports to the mediator and sent copies to me. I figured I should at least offer an opposing point of view and dug up some some reports that showed substantially higher verdicts. When I entered the mediation I handed them to the mediator who tossed them on the table without even a glance. “I don’t need those,” he told me. “I know what the value of this case is.” Oh. I see. Will you give me some kinds of heads up when I am getting warm? I was under the mistaken impression this was a collaborative process.
4. Acknowledge the process is frustrating. At a recent commercial mediation, the mediator huddled with myself and my clients beforehand and told my clients a) it was going to be a long day, and b) there will be moments of frustration. That may have been the first time I had heard a mediator openly acknowledge the process can be frustrating – especially for non-lawyers. And he wasn’t whistling Dixie. That particular mediation moved along glacially for a variety of reasons. And the clients did get frustrated. But not enough to really disrupt the proceedings. Because they had been told what too expect, they were able to grit their teeth and keep talking.
5. Watch the sidebars. Clients get wary when there is lots of huddling with their lawyer outside their earshot. I understand sometimes a brief sidebar may be necessary. If that has to happen occasionally, fine. But let the client know why you needed to talk to their lawyer in private. No need to recite all the gory details – and yes, sometimes, things are better left unsaid. But work to keep the client included. Again – the client may be asked to make a decision about what may be the largest lump sum of money her or she will see in their lifetime. A client who has been repeatedly left alone in a conference room while the mediator and his lawyer whisper outside might wonder why he isn’t being included in discussions about his case. Remember – the odds of getting the case resolved go up if the client feels like he is part of the process.
6. Some analysis helps. Don’t just walk in, convey an offer and then blankly stare at us, waiting for an immediate response. If you are going to do that, you might as well cue the Jeopardy music. The negotiation process is maddening for clients. They see only the strengths of their case. Put some context on the numbers when you present them. Something along the lines of: “I recognize this number is really low. First, remember that we are early in the process. The numbers will go up. Secondly they feel the exposure is limited because: a) you conduct might be considered a breach as well, or b) those cliff-diving pictures on Facebook are NOT helpful, or c) let’s face it, drunkenly jumping on the officer’s horse was a bad idea.” Clients need to understand that there are factual and legal issues that make that number rolling around in their head unrealistic.
7. Opening statements aren’t necessary. There is no jury in sight. You hourly rate is pretty healthy. Why waste valuable time making everyone listen to a series of spectacularly drab opening statements? Everybody in the room knows the relevant facts and law. Opening statements are best left for the courtroom. Of course you can give counsel the option to make an opening statement but be sure to let them know they can stand on their submission. Most of us are only too happy to stand away.
8. Sometimes the Kracken must be unleashed. At another medical malpractice mediation, my client’s mother was well, unpleasant. Ah, hell – she was brutal. She was a half hour late, without explanation or apology. Her nonstop commentary was often borderline offensive. I dragged her into the hall a couple of times to read her the riot act but it fell on deaf ears. Moments later she would be back at it. A couple hours into it she suddenly announced the process was a waste of her valuable time and she was leaving. She got up and started walking toward the door. The mediator, who had been remarkably patient, let her have it. “Ms. Smith,” he began, “This mediation process isn’t about you. It never was. It is about your son. We are talking about large sums of money that will be paid to him over the course of his lifetime. What we are doing is very important – to your son. You have an obligation as his mother to sit down and participate in the process. Your impatience frankly doesn’t really matter to me. My primary interest is the welfare of your child. I would think you would have the same interest, but perhaps not. You can walk out that door if you wish. But if If you do, know that this case will NOT settle today and may never settle. And you will have done your son a grave injustice.” She deserved every word, and probably more. Ms. Smith sat down. And she shut up. And the case settled. Sometimes people like Ms. Smith, or the recalcitrant adjuster deserve to get their ears pinned back. If so, have at it.
9. NEVER do away with the freebies. Pens, notepads, ferrets, whatever. The parties are paying lots of money for the pleasure of your company. Taking a little souvenir home takes a little bit of the sting out of it – even if they never use it. And you would be surprised how many lawyers walk out of your offices with 12 new pens in their briefcase.
