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Bar News - June 17, 2011

What Do Mediators Want?


Long ago Sigmund Freud asked, "What do women want?" In the last 100 years few of us have done well with that question, but perhaps Bill Cosby had it best: "The only thing I have learned in 52 years is that women want men to stop asking dumb questions like that."

Fortunately, what mediators want is not so hard to discern. Mediators want to help the parties achieve a satisfactory settlement. And what they want from you, partyís counsel, is to provide them with the tools todo the job. Here are a few of them:

A Case That Can Settle

Most cases can settle because the lawyers, being professionals working with the same information, tend to value them in the same range. Yes, plaintiffs are usually at the high end of the range and defendants at the low, but thatís not a problem. Thatís human nature. But once in a while parties come to mediation, hoping to settle, only to discover that they are millions of miles (or dollars) apart. This is not a hopeful picture. Better if the lawyers had talked beforehand, and found that out. Good mediators usually can help people reach across a table, not so often across a gulf.

A Case That Can Settle Now

A case can settle now if the parties have the information they need to evaluate it Ė and have that information far enough in advance of the mediation that they can evaluate it. So get the entire necessary discovery done, and then come to the table. You would be surprised how often this does not happen. Usually, it must be said, it is the plaintiff who has not provided all the important information to the carrier, or provided it too late to be considered. (This is not a criticism of plaintiffs; it simply reflects the fact that most of the discovery in P.I. cases is passing from plaintiff to carrier, and the carrier, with its bureaucracy, is typically slower to make decisions than the individual plaintiff).

Information only provided at the eleventh hour might as well be invisible. If crucial information is invisible, settlement is much harder to achieve. Cases also can settle now when the lien issues have already been addressed, maybe even resolved. If the lien is still up in the air (think Medicare) at least the process should have been started, long since. If the lien is still a complete mystery (as, sadly, too often is the case), then the plaintiff has no idea how much money he will net. Plaintiffs, strangely enough, do not like this.

A Good Opening

There are two openings, each addressed to a different audience, each with different goals. The first is the written mediation summary. It usually contains facts and arguments already familiar to the parties, so the summary is mostly aimed at the mediator. Its purpose: to educate the mediator on the facts and, hopefully, start her seeing the case from your point of view. If you write a good, complete summary, you have a shot at that. At the very least, your mediator is impressed with your preparation. Or you could submit a bad summary Ė say, a copy of the writ, a cut-and-paste from the brief statement of defenses, or a copy of a demand letter written a year ago. Mediators see these kinds of summaries all too often. They are not educated, influenced, or impressed.

The second opening is the opening statement at the joint session. This is not really aimed at the mediator (so it makes little sense to address it to her), but at the decision maker on the other side of the table. Part of the opening statementís purpose may be to look good for the client. This is not a bad thing, particularly if itís an important client, or one who may be skeptical or scared; however, posturing too much may rouse unreasonable expectations and impede the process. But if the statement is sometimes designed to impress the client, itís almost always designed to impress the other side. Each counsel wants to show the opponent the bad things that could happen if the case has to try. Plaintiff and defendant do that a little differently.

Plaintiffís counsel would like to show the adjuster that, if necessary, she will be an effective advocate at trial. She makes her point by skillfully presenting the strengths of her case Ė and by effectively acknowledging and addressing its weaknesses. The weaknesses are often ignored; many counsel seem to think they should only talk up the positive. This may impress the client but not the adjuster, who knows everything will come out in front of the jury Ė and that counsel better be ready for it.

Counsel would also like to show the adjuster that she has a good client. If the adjuster was not at plaintiffís deposition to see what he is like, then a big opportunity is being missed when a likeable, credible plaintiff just sits there, mute. Prepare him, and have him talk. Or, quite often, it is the spouse who tells the story best Ė and who should be prepared to tell it.

Defense counsel has the most to gain or lose from the opening statement, as the adjuster has heard many of these speeches, but the plaintiff, only one. For plaintiffs, this unfamiliar mediation process can evoke fear, suspicion, or anger. Defense counselís job is to avoid fanning those flames, which generally impede settlement, while still presenting the cold, hard facts as the defense sees them. This is not an easy task, and mediators see a remarkable range in the ability of defense counsel to do it. The best, in my view, are polite, respectful and friendly while delivering their message. And they often depersonalize their argument by talking more about what juries may think than about what they think.

It may not matter too much how well plaintiffís counsel gives her opening, or to whom it is addressed; this isnít the adjusterís first rodeo. But it can make a big difference what defense counsel says and whether he speaks directly to the plaintiff. This is a big opportunity to communicate something to the plaintiff Ė an opportunity that should not be wasted.

Well-Prepared Clients

Most of the time, this is the plaintiffís first mediation, and she needs to be prepared. She needs to be prepared for how the process will unfold, what she will hear from the defense in opening, and how the strange bargaining will proceed. Most importantly, she needs to hear from her counsel all the potential problems, whatever they may be. The issues with liability. The causation questions. That the final offer is likely to be a lot less than she hopes, and why.

Most plaintiffs these days come to the mediation well-prepared, but a few are not; counsel apparently decides to let the mediator be the bearer of ill tidings. This does not work well. Plaintiff may have needed time to absorb it all. She may refuse to listen to the mediator, since these are things her counsel never told her. If her counsel now agrees, she may distrust him; why didnít he tell her before? If her counsel argues with the mediator, then whom can she trust? This is not a promising picture.

The common wisdom is that defense counsel donít need to prepare adjusters for mediation; thatís the adjusterís job. This is often true. But counsel need to look out for the exceptions that prove the rule. The times when the adjuster is new to the file, and needs a thorough updating. The times when counsel and adjuster have never worked together before, and need to talk through how they plan to team up. And those times (they do happen) when counsel realizes that some important piece of information somehow has not been communicated to the carrier, information without which the whole picture of the case is incomplete. If counsel has gone over the file well in advance of the mediation, there will be enough time to ensure that the adjuster is fully prepared and up to speed. If counsel waits until the night before to check out the file, itís too late to change anything.

Patient Clients

Most mediations in personal injury cases last between two and three hours. This may not seem like a long time to lawyers who are used to cooling their heels in courtrooms. But to the average plaintiff, or even the average adjuster, the mediation can seem to last an eternity. Both plaintiffs and adjusters should be prepared by their counsel for a long, slow process. Hopefully, neither will be surprised or annoyed by the blue sky demands or the cheapskate offers which typically appear early on. Both should be counseled that itís going to be awhile before the other side "gets real." Itís anybodyís guess why the bargaining process in personal injury cases is so odd Ė but it is. Trying to bust right through to the bottom line seldom does anything but gum up the process. Clients need to understand that the old story is true: the turtle, not the hare, usually wins the race.

Impatient Clients

Patient clients are usually good, but sometimes impatient clients are better. Social psychologists tell us that, in a negotiation, there is an advantage to being the first party to enter the zone of risk; the early bird can set the terms of the rest of the debate. In most mediation there comes a moment when nickel-and-diming no longer makes sense; itís just wasting time and goodwill. So a wise plaintiff makes a big move down. Or a wise defendant makes a big move up. That kind of move can not only shorten the mediation, but get a better response from the other side. Sometimes, itís the hare who wins the race.

Settle Now - No, Settle Later

Counsel are well-advised to go into mediation determined to give it their best shot. Get it done now. Buy it or try it. This is a good mindset. But sometimes the parties get close at mediation, yet canít quite close the deal. The plaintiff needs a little more time to swallow hard; next week the adjuster will pony up a little more money. Itís a mistake to go into mediation at anything less than full speed ahead: seize the day! But itís also a mistake to think that if we didnít get it done today thereís no hope. Some cases settle next week, not in spite of the mediation, but because of it.

So an article that began by quoting Sigmund Freud obviously should end by quoting Scarlett OíHara: "Tomorrow is another day."

Blake Sutton is with Mallory & Friedman in Concord. He has been a NH Bar member since 1983.

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