Defense lawyers in mediation often must function like major league pitchers in tandem with their catchers to win the game. Their goal, like their baseball counterparts’, is to make the perfect pitch. The perfect pitch comes only after long and careful preparation. In Part I of this two-part feature the strategy and preparation phases of the winning game plan were discussed (see Bar News, June 4, 2004, page 12); now, in Part II it’s time to get out there and play the game.

Strike Two: The Best Pitch

Although strong opening statements are essential, that does not mean that everything should be put on the table at once. Few plaintiffs can hear it all in one go, especially when the defense has a lot to say. Therefore, experienced defense counsel frequently save some of their best facts and arguments for later in the day, when plaintiffs may need some more softening up. "Here’s something else," they say, "that you might not have thought about when you made that last demand."

Sometimes saving a few good facts is also helpful in working on mediators; lawyers try to influence mediators just as much as baseball players try to influence umpires. New arguments not only influence mediators’ thinking about the case, they can help mediators do their job: mediators always appreciate having something new to say when they go into the next caucus.

Finally, there are occasions when a good pitch never gets thrown at all. Defense counsel sometimes know something that plaintiffs don’t and they will only want to bring that out if the mediation is going well and settlement appears likely. Otherwise, they will save it for trial.

Like dessert, the best pitch is often only served up at the end. Holding off on making that pitch takes patience, a virtue that pays huge dividends throughout the mediation.

As defense counsel in mediation, you need the other players on the team to back you up as New Hampshire Fisher Cats’ infielder Stubby Clapp does pitcher Brandon League. (Photo courtesy of New Hampshire Fisher Cats/John Carey)

Ball Three: Wasting a Pitch

One of the great legends of mediation is that corporate defendants and insurance companies are like the New York Yankees; they have all the money and all the power, so they control the game. While partially true, this ignores the simple fact that often it is defendants, of all those present at mediations, who most want certain cases to settle. Settling is often defendants’ only agenda. Unlike plaintiffs, who may harbor a need to tell their story or send a message, defendants often have no desire other than to get the matter resolved and move on.

The pressure to achieve a resolution may make some defendants frustrated, impatient, and too ready to draw a line in the sand, pay too much, or walk away too soon. They may act like inexperienced pitchers who grow frustrated when batters deliberately foul off tough pitch after tough pitch—and, therefore, try to throw a fastball right down the middle of the plate. When that frustration arises, defense lawyers must counsel patience and defend their clients from one power that plaintiffs do have: the power to drive the defense crazy.

When defense counsel come to the mediation prepared, and are suitably conciliatory, forceful, and patient, they have a great chance to succeed with:

The Payoff Pitch

Seasoned pitchers know they can’t strike everybody out; instead, they try to get batters to hit a particular pitch. Defense lawyers are no different: they want plaintiffs to put the ball in play by hitting their pitch and accepting the final offer. If that offer is lower than the authority, well, then someone on the defense side of the table is a hero. But, if the case has been properly evaluated, then any settlement at or below the authority is a success for the defense.

When cases settle, there aren’t always winners and losers as there are in baseball; in this arena, everybody must give a little and get a little. Sometimes, when the parties have a business relationship which survives the mediation undamaged or even enhanced, mediation can be a win-win proposition. In every mediation, it’s not who won or lost, the beat writers who cover the mediation league might say, but how they played to gain.

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