Effective Mediation Tactics

Private mediation is the most effective way to attempt to resolve a case prior to trial. There are some important tips in order to have an effective mediation and to give your case the best opportunity for settlement. Here are some of our key practice pointers:

1. Timing of Mediation

There is no right time to mediate a case. However, I would recommend that you have sufficient information about the factual and legal issues of the case before participating in a mediation. I generally recommend the deposition of the plaintiff before mediation. I also recommend that a mediation occur before the expert designation as it allows for your client to save the costs of having to designate experts if you are able to resolve the matter at mediation.

2. Selecting the Mediator

I cannot over emphasize how important it is to have an effective mediator on a case. Not every mediator is the best fit for a particular case. An effective mediator should really focus in on the weaknesses of both sides of the case. Merely saying both sides have good arguments is not very effective in getting parties to move off of their position. Most attorneys value the mediator’s view of the case as they are an outsider giving their opinion so it is important for the mediator to use that to show issues with your side of the case.

I have found that when the mediator is someone on my recommended list of mediators that there is a significantly higher chance of the case settling because I am familiar with their mediation technique and end results. On cases where I have allowed the other side to select a mediator that I have not experienced before, I have found that the case has a significantly less chance of settling. In summary, I recommend vetting your mediators and going with an effective mediator for your case.

3. Prepare a Concise Mediation Brief

The majority of the time the mediator has already made determinations and evaluation of the case based upon the briefing. I find that most mediators spend much more time getting to numbers rather than evaluating the actual evidence. The Mediation Brief is your opportunity to educate the mediator on the issues of the case and the mediator’s focus during the mediation tends to lean towards what was put in the Mediation Briefs, rather than new arguments during the mediation.

4. Appropriately Evaluate the Case

There is nothing more problematic than an attorney who has not appropriately evaluated the case. As a litigator, you must know the value of the case. From your standpoint, you must be objective with the evaluation of the case and have your client prepared for the realistic range of exposure going into the mediation. It is much more difficult to get the client’s mind off of that range at a later date so the best practice would be to appropriately evaluate the case going into the mediation.

5. Getting the Mediator on Your Side of the Evidence Early On

This tactic applies more for cases with multiple defendants. I cannot over emphasize how much easier it is for you and your client to attend a mediation when the mediator is on your side with the evidence early on. When you have the mediator agreeing and understanding your position in the case, it makes the mediation much simpler and likely a favorable result. This puts you in the position as a minor player in the case and it is important to get the mediator to understand that the mediator should be going to primary player defendants to get the bulk of the settlement funds.

6. Don’t Give Away Too Much Information Regarding Your Maximum Authority to the Mediator

Remember, the mediator is trying to resolve the case whereas you are not only trying to resolve the case, but you are trying to resolve the case for the lowest amount. In that regard, the mediator and you have somewhat competing interests. A lot of mediators like to figure out where your maximum authority is during the mediation without directly asking for it. I tend to not go to the maximum authority as I do not want the mediator to think that my client would be satisfied at reaching that amount. It also allows the mediator to potentially push harder on the other party to get the plaintiff to a lower amount, rather than the mediator getting you to the plaintiff’s amount.

7. Anticipate Moves of the Other Side and Beat Them to the Next Move

After a few moves by the parties, it generally gives me a sense where the other side is wanting to end up initially. Each move a party is trying to reset the mid-point to a favorable amount. If you see the other side is trying to reset a mid-point to an amount that your client is not willing to get to, you will want to make the next move to beat them to that mid-point. For example, I have had effectively on occasions seen where the Plaintiff was trying to set the mid-point that I went straight to the mediator recommending a mediator’s proposal at an amount well less than that anticipated mid-point plaintiff was pushing for. This allowed the case to settle at a mediator’s proposal at amount lower than the mid-point whereas if I did not make that move then the mediator likely would have made a mediator’s proposal at the mid-point.

8. Bracketing Usually Does Not Work

The concept of bracketing is that plaintiff will move to X number if the defendant will move to Y number. However, I do note there is the expectation that if you commit to the bracket, that you are signaling to the other side that you are willing to accept the mid-point of the bracket. As such, it is not the actual bracketing that is the issue, but rather the fact that both sides are being asked by the bracketing indirectly to accept an amount that is the mid-point which when offered by the other party is generally not a reasonable mid-point. As such I have found that bracketing does not usually work.

8. Accept the Fact that You May be Dealing with Difficult Opposing Counsel that Has Mis-Evaluated the Case or an Unreasonable Expectation of a Party

In the vast majority of cases that I have not settled, it was usually due to (1) a difficult opposing counsel that has misevaluated the case; (2) an unrealistic plaintiff for which the attorney has lost client control; or (3) our own client has an unrealistic view of the exposure.

Although we do have some control over our own client, it is important to make sure that our client is made aware of the risks and exposure of the case as well as likely outcomes. However, if the issue is the difficult opposing counsel or plaintiff, this is something you have no control over and at some point either they become more realistic as the case gets closer to trial.