This article was originally published in Litigation Management Magazine, © Copyright 2016. All rights reserved. Republished by Butler with permission.
The door opened and in walked Ms. Susan Hebe. Ms. Hebe was born in Greece and immigrated to the United States when she was seven. She was in the prime of her life and was, before the accident, the CEO of a large manufacturing company. Then she was injured in an industrial accident that shattered both of her arms and disfigured her face.
Walking into the room behind her, were two older lawyers and Ms. Kim Beach, the preeminent mediator in this jurisdiction. Already seated at the ornate conference table was the young defense Attorney, Morgan Miller.
This was Ms. Miller’s first mediation of any significant matter. She was nervous. She had practiced her opening in the hotel, pacing her room, countless times. She was young, she was apprehensive, she was well prepared. She had worked with her mentor and had outlined what it takes to mediate, and negotiate, well.
When the case was first e-mailed to her, Ms. Miller sat down and thought about when to mediate. An early mediation could save fees from protracted litigation. However, too early would leave her blind to some key facts, deposition testimony, various lien amounts and medical costs. She opted to mediate relatively early in the process. Despite not knowing all of the facts, she wanted to set the tone for settlement discussions. For as horrific as Ms. Hebe’s injuries were, there simply was no liability on the part of Miller’s client.
She canvassed her firm, her client’s representatives, and other lawyers. She actively shopped for a mediator. And not for any mediator, but a mediator who specialized in handling these types of industrial accidents and cases. She hired Ms. Beach because she knew from her research that this mediator could talk to both sides, and hammer home the weaknesses to both parties. This mediator was not a “numbers person”. She would not merely split the difference or walk room to room with numbers and “brackets”. This mediator did not hesitate to delve into the facts. This mediator was patient, kind, yet brutally blunt in her case assessment.
This young lawyer had carefully planned her mediation strategy. She had served, early on, proposals for settlements/offers of judgments. She came to the mediation knowing as best she could, the known lien amounts, the boardable medical costs, and collateral sources. Ms. Miller had exhaustively researched the law. She outlined the facts showing no liability. And, she had written a presentation that incorporated key slides, pictures, and even evidence from the accident itself.
Ms. Hebe and her two lawyers sat down. After the obligatory mediator’s disclosures and instructions it was time for the opening statements. Ms. Hebe’s lawyers presented the plaintiff’s case amidst sobs from their client. For what seemed to be several minutes at a time Ms. Hebe’s dagger eyes were trained on Ms. Miller.
Now it was time for the defense opening. Miller had made the decision to speak directly to Hebe. She pointed out the glaring weaknesses in the plaintiff’s case. She used her slides, photos and evidence to systematically dismantle Ms. Hebe’s claims. She spoke softly, but firmly. She was polite. She showed warmth and empathy. Her hammer was cloaked in velvet.
No, it did not settle that day, or that week. But two months later, following up on the mediation, and with the help of the Mediator, the case did settle. So what did Ms. Miller and we learn? Here are some key points for both counsel and client to consider in the mediation process.
Decide when to mediate. This can be one of the most important decisions. Mediating early could save the fees of protracted litigation. It can also set the tone and outline for future negotiations should the case not resolve at mediation. At the same time, you may not have all of the facts and numbers that you need to adequately access and evaluate the case. Mediating much later, and closer to trial, often puts pressure on both sides to settle.
Choosing the mediator. We all fall into the trap of picking a mediator that we like and use often. We know the drill. We know the process. We know how they think and how they mediate. But think about your case. Is this the right mediator for that kind of case? Do your research. Talk to other lawyers. Talk to Judges. Find out who the mediators are in your jurisdiction that specialize in these particular kinds of cases. If you have a difficult opposing counsel or a difficult party on the other side, you will want a mediator that can control the process. You want a mediator that will not be railroaded, or bullied, or lulled into numbers that are fantasy. You need a mediator that can access the case honestly and can convey the strengths and weaknesses to both sides. And, you want someone with gravitas that can establish credibility and authority.
Preparation. Too many times we go into mediation blind and without purpose. Lawyers and their clients should discuss, well before hand, what the goal of the mediation is. What the authority will be. You should discuss and learn all the facts that you can. There must be an honest assessment of the case and the cost of the litigation. Clients should not hide their authority from their lawyers. How do you expect that lawyer to not only present the case at mediation but to handle the negotiations that day and beyond if they do not know exactly what their client is thinking in regard to the assessment of the case and settlement value?
Before the mediation, you should consider filing motions for summary judgment, Daubert motions (challenges to expert witnesses), key motions in limine, and serve offers of judgment/proposals for settlement. These can be valuable cards to play at the mediation table.
Presentation. The lawyer and the client should discuss before the mediation how the presentation should take place. Will we use powerpoint? What kind of demonstrative exhibits should we use? Opening statements in mediation are like opening statements in a trial. You want to convey a favorable strong case to both the other side and the mediator. Decide, before hand, whether you are going to speak to the lawyers, the opposing party, or both. Some of the most effective mediation openings are directed to the party pointing out evidence and law that their lawyer may not have shared with them.
This is your opportunity to speak directly to that party. Consider whether you will display strength, empathy, or disdain. Think about what you want to convey and how you want to convey it. Sometimes, the plaintiff merely wants to tell her side of the story and to feel empathy and sympathy from across the table.
Use the presentation to not only educate the plaintiff, but also to listen to the plaintiff. The arguments they present at the mediation will most likely be similar to the arguments they will make at trial. Listen and pay attention to the arguments, the importance they place on those arguments, and how they present their case. If the other side is not prepared, and does not present an effective opening, show them how it is done. Show the other side that you are prepared to negotiate and try the case and try it well.
Gerald Albrecht is a Partner with Butler Weihmuller Katz Craig LLP.
Lincoln S. LeVarge is the AVP of Legal for Tower Hill Insurance Group, LLC.