Winning Mediation Strategies
Next to trial, mediation can be the most crucial day of litigating your case. Thatís why it's important to spend time and effort having the case "trial ready" prior to even agreeing to mediate.
One important prerequisite to agreeing to mediation is that the trial date has already been set, and preferably, is approaching. Defendants have little motivation to provide a top dollar offer at mediation unless the pressure of trial is on the horizon. If it isnít, it isnít worth your time to mediate.
It is important to appear with your client at mediation as if you are appearing at trial. Rather than taking only the portions of the file that you anticipate using at mediation, you should take the entire file. First, you may need it. Second, it shows a prepared Plaintiff, and that's one non-speaking strategy that can help increase the value of your case.
In addition, make sure that you have completed and submitted any pre-requisites of the mediation: signing the mediation agreement, submitting necessary pleadings, witness lists, and preparing a short and concise statement of the case should be done to assist the mediator. If no demands have been made, an initial demand may be in order to begin the mediation. Confirm that you have copied all counsel and your client in addition to sending a copy of your mediation package to the mediator.
Confirm Attendance by Adjuster With Authority
The most important person to be in attendance is the insurance adjuster with authority to extend pecuniary offers to settle. Having someone available by telephone isnít optimalÖneither is having someone in attendance that doesnít have ultimate authority to extend offers. It does no good to you if the person youíre trying to persuade is not at the mediation. You should confirm this person's attendance before agreeing to the mediation.
The Opening Statement
Opening statements are becoming less and less frequent at mediations. Many times, the mediator will make a short statement himself/herself and then separate the parties. Sometimes, the parties will be separated from the beginning. If an opening statement is available, it can help drive up the value of your case (1) only if the insurance adjuster is present, and (2) only if he/she has not seen many of the most persuadable exhibits. Also remember that an opening statement in mediation will be helpful only to the insurance adjuster. The mediator cares little to nothing about the merits of your case Ė heís simply there to assist the parties in finding middle ground. Further, your opening statement can (a) telegraph your trial opening statement to the defense and (b) drive up unease and friction with the defense attorney for the duration of the mediation.
Movement in Mediation Frequently Happens Towards the End
One of the most important reminders in mediation is to hold back persuadable talking points and exhibits. The mediator will make at least a dozen trips back and forth between rooms. You should arm him with ammunition each time he leaves your room. Otherwise, he wonít have any talking points to help increase the Defendantís offer from their current offer.
With that in mind, itís also important to save many of the most damaging talking points to the defense until after lunch. Thatís usually when the movement happens, and you want to be able to make the largest moves at that time. Send in a written statement signed by your expert. Send in a picture that you may use as a theme throughout the trial. The more persuadable points you can make towards the end of the mediation, the better. This can be the difference between an offer that you really have to consider versus trial, or an offer that you believe would be comparable to a juryís finding on a great trial day.
Don't Be Afraid to Pack Up and Walk Away
If you don't appear at mediation with the perspective that you can and should leave at the end of the mediation without settling the case, then you aren't in a position of leverage. Always remember your client's value, and if the offers towards the end of the day don't meet a threshold that will make your client whole, don't be afraid to thank the mediator and the other side for appearing and leaving without settlement. If the defense knows you are taking this perspective, it will likely drive up the value of your case at mediation.
Use of these strategies will put you in the best position to maximize the value of your case at mediation. With a good mediator, and a Defendant willing to consider your perspective, it's possible that you can reach common ground and resolve the case.
ABOUT THE AUTHOR: Steve Harrelson
Steve Harrelson is a former state senator turned trial lawyer. He is based in Little Rock, Arkansas with offices in Little Rock, Shreveport, Louisiana, and Texarkana, USA. Steve is licensed in Arkansas, Louisiana, and Texas.
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Disclaimer: While every effort has been made to ensure the accuracy of this publication, it is not intended to provide legal advice as individual situations will differ and should be discussed with an expert and/or lawyer. For specific technical or legal advice on the information provided and related topics, please contact the author.