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Preparing of the Case for Mediation
Preparation is the key to mediation advocacy. Be prepared to present your case fairly and to respond to your opponent’s points, both factual and legal. Give the mediator sufficient ammunition to move your opponent toward your position.
In a personal injury case, understand the medical issues. If you need expert assistance, get it. If there are issues of permanency, be prepared with an informed opinion, whether you decide to share it or not. Understand the medical bills. Will there be future care? If so, at what cost?
Have a full understanding of the liens. This has become much more complicated with the legal controversy around the reimbursement of ERISA, Medicare, and Medicaid liens,
Understand the settlement options, including structured settlements, or special needs trusts.
Understand the strengths of your case, but most importantly, understand the weaknesses. Your opponent certainly will.
Research verdicts and settlements in similar cases to formulate a concept of value. No two cases are exactly the same, but showing a number of verdicts and settlements in similar cases, will strengthen your case at mediation.
Part of your preparation should be making sure the mediator is prepared. Your mediation submission, whether a formal brief or a simple letter, should describe, not only the strengths of your case, but also the weaknesses. You are much more credible if you acknowledge your problems.
If you’re representing a plaintiff with pre-existing injuries, acknowledge them. If your defendant has prior issues of alleged misconduct, denying them will not make them go away. In other words, describe your case, warts and all. Unless you are disclosing something that is not otherwise discoverable, my advice is to exhibit the same candor with your opponent. The process is confidential so nothing you say will come back to bite you afterwards.
Preparing Your Client for Mediation
Be honest with yourself and your client about the strengths, and particularly the weaknesses, of your case. Only then can you come close to assessing the risks of trial vs. settlement.
To effectively communicate with the other side and make a deal, you first need to know who is actually making the decisions. Is it the actual party, him or herself? Is it a spouse, employer or friend? Is it the lawyer on the pleadings, or maybe an in-house lawyer? An adjuster or claims manager? Maybe a CEO? If it is unclear to you, ask. The more you know about who is driving the other side, the better opportunity you have to tailor your communications accordingly.
Once you figure out who is driving the train, think about what that person(s), or company needs out of this settlement, and figure out a way to deliver that, without compromising where you can’t. Sometimes its as simple as a sincere apology. Sometimes it’s important for one party, or both, to maintain confidentiality. This can be a wonderful opportunity for creativity.
Even in personal injury cases, where the deal is usually about agreeing on a sum of money to compensate the plaintiff, creativity helps. What does an adjuster need out of a settlement, except the obvious, closure and elimination of risk? The adjuster has a boss somewhere looking over his or her shoulders. That adjuster needs to be able communicate about how he or she saved the company money or eliminated a big risk.
In employment cases, or business disputes, there are a myriad of non-monetary items that can make up a settlement, depending on the parties’ interests in maintaining the relationship, not harming a reputation, or dealing with tax issues.
The importance of listening is too often overlooked. If you’re in a room with the other side, listen to what they are saying. Don’t interrupt. Oftentimes they are communicating subtle clues about what might be involved in a successful settlement. When you’re with mediator, listen to what he or she is saying. Even if the case doesn’t settle you can learn what to expect at trial.
A big issue for trial lawyers, particularly in Oregon, where discovery is not as extensive as elsewhere, is how much to share with your opponent. As a mediator, I firmly believe that the more you share, the more likely you are to settle your case. However, as a lawyer who has tried cases for 30 years in Oregon, I recognize the value of a good surprise at trial. Ask Austin Crowe, my friend and adversary, from whom I kept the fact that a key witness, after his deposition, had undergone hypnosis to refresh his recollection of the events.
My advice is to share anything that is otherwise discoverable. Your opponent will find out eventually, so why not at mediation where it might help drive a settlement.
As far as “surprises” go, dole them out carefully. If the parties are close enough that sharing might close the deal, then share, even if it’s communicated in a general way through the mediator. Remember that the mediator can only share what you allow him or her to share.
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