PLAINTIFF LAWYERS IN mediation have been likened to experienced gamblers showing their neophyte clients the ropes; defense lawyers in mediation have a much different task. Their job is not about client control but about client cooperation. To do this job well, they must function not like gamblers but like major league pitchers, who work in tandem with their catchers to win the game.

As defense lawyers approach mediation, they and their clients scout the opposition in order to put together a game plan. At mediation they put their plan into effect—with fine-tuning as the game goes along. Their goal, like their baseball counterparts’, is to make the perfect pitch. The perfect pitch comes only after long and careful preparation, which begins with:

The Scouting Report

Thorough preparation for mediation is crucial. The first step is assembling all the information defendants need to put a value on the case, well before the mediation session. Like catchers, corporate defendants and insurance companies are hard to knock over—but they can be slow moving. They need time to evaluate claims, and those evaluations seldom magically increase at the mediation session, just because new information has suddenly appeared. So defense counsel must try to ensure that all the information and analysis have been conveyed to their clients with plenty of time to spare. Not infrequently, that means repeated pressure must be brought to bear on plaintiff counsel, who are reminded that only if they build it will defendants come (with money).

Defense counsel must also identify, well in advance, other factors that may impact the parties’ thoughts about settlement. In a business dispute, the parties may have an ongoing business relationship that the client wants to preserve. Obviously, this kind of motivation can influence not only the tone of the mediation but the kind of settlement that the client is willing to accept.

In personal injury cases, defense counsel will also do well to inquire, well in advance, whether there are any outstanding liens. The existence of significant liens will sometimes influence insurance carriers’ thinking about their reserves, and it will certainly influence plaintiffs who are thinking about what they will take home at the end of the day. Lien information is best obtained early, not in the mediation session itself. If there is a large lien that may impede settlement, plaintiffs’ counsel should be urged to negotiate the lien in advance or even invite the lien holder to the mediation.

Once the long-range scouting has been completed, it is time for:

The Pre-Game Meeting

Defense lawyers who believe their preparation is over once the client has the information needed to evaluate the claim, will never make the all-star team. Everyone on this side of the table is a professional – the thinking goes – so counsel need do no more than huddle with the client for ten minutes before the mediation session begins, in some hastily arranged meeting room or court hallway. While this can certainly work, sometimes settlement opportunities are lost.

Melinda Gehris, of Devine, Millimet and Branch, suggests that this preparation begin a full month in advance, with a letter reminding the client of the upcoming mediation session. If settlement authority has not been determined, that should be completed at least two weeks before the mediation. Finally, there should be a pre-mediation meeting at least a couple of days before the session itself, to go over strategy, determine whether the client wants to speak in the opening session, and clarify how to call a superior for more authority should that be necessary. This is also the time to discuss the plaintiff lawyer’s negotiating style and how to deal with that person.

Now that the preparation is over, it’s time to play the game, beginning with:

Ball One: The Set-Up Pitch

Wily baseball pitchers often will not start off a batter with their best pitch. Instead, they may start with something just a little inside or outside, which is not intended to be a strike but to set up a strike later. Likewise, experienced defense lawyers usually will not start off their opening statements in the joint mediation session by plunging directly into the heart of their defense. Instead they may begin with expressions of sympathy for plaintiffs’ distress and affirmations of the defendants’ great interest in resolving these matters. They may discuss, in non-adversarial terms, how the negotiation process works, and ask plaintiffs not to take offense at the initial offer and the apparent gamesmanship of the process. It is often helpful to concede lost causes. It is never helpful to be disrespectful to plaintiffs, either by word or action; lawyers or defendants who roll their eyes with disbelief are not helping the cause. The first goal of the opening statement is not to intimidate or infuriate plaintiffs, but to establish a cordial working atmosphere, in which hard things can be said without hardening positions.

Having started out on a friendly note, defense lawyers are now ready to throw:

Strike One: The High, Hard One

Opening statements in mediation are defense lawyers’ only opportunity to speak directly to plaintiffs, a great opportunity which should not be wasted. This is the time to throw the high fastball – to tell plaintiffs the hard truth about the problems with their cases. One expert at conveying the hard truth without antagonizing plaintiffs, according to plaintiff lawyers and mediators alike, is Larry Getman of Getman, Stacey, Schulthess & Steere. He often tells plaintiffs that he appreciates being given the opportunity to tell it to them straight, because it wouldn’t be helpful to anyone for him to be anything but blunt. He tells plaintiffs that his job is to present facts that jurors are going to hear at trial – and the jurors often listen.

Probably the single most important thing defense lawyers can do in most mediations is to present those facts, forcefully but not aggressively, in a way that plaintiffs can understand. When plaintiffs see that defendants have something to say that may score runs at trial, they may also begin to hear that the case will not settle quite in the dollar range they had hoped. Many cases are not going to settle at all, unless plaintiffs start getting that message right from the beginning of the mediation. Defense lawyers have to make that pitch.

Sometimes, defense counsel must deliver the hard news closer to home:

Ball Two: Shaking Off the Call

Lawyers, as much as pitchers, are engaged in a constant tug-of-war between belief and doubt. Pitchers have to believe in their "stuff," but they also have to recognize that a particular pitch isn’t working and try something else. Trial lawyers must believe in their cases, but they also must maintain a healthy skepticism or they risk being blindsided. The balance of belief and doubt is substantially different for plaintiff and defense lawyers, for a simple reason: only plaintiff lawyers get to pick and choose their cases. Defense lawyers typically work on whatever comes through the door. That puts a greater burden on them to look hard at the merits of their cases, and to separate out fulfillment from wish fulfillment.

One of the hardest parts of the job for defense lawyers can be dealing with those defendants who never saw a claim they didn’t dislike. If that means cases are being undervalued, then counsel have to push for a more realistic view, both of liability and damages. If things get stuck in the mediation, they should be prepared to talk about the BATNA (best alternative to negotiated agreement) and the WATNA (the worst alternative). Sometimes, oddly enough, both the BATNA and WATNA are higher than what defendants want. When that happens counsel, like baseball pitchers, have to shake off the call and ask for another pitch. Always keep in mind that undervaluing cases is seldom in the defense’s interest—especially when the result is a trial that ends with a home run.

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