Bar News - October 18, 2013
Alternative Dispute Resolution: Preparing Your Client for a Successful Mediation
By: Dennis Ducharme
There are some recurring mistakes that occur in the preparation of clients, especially those not often involved in negotiations, that when avoided enhance the prospects of obtaining an acceptable result in mediation. While there isn’t one "right" way to mediate a case, being aware of common pitfalls in client preparation can make postiive outcomes more probable.
Not explaining the basics
Too often, I find that a party appearing for mediation has no idea of what lies ahead. A plaintiff knocking on my door 15 minutes ahead of schedule, per her lawyer’s instructions, should not be taken aback when I tell her, "No, 45 minutes in the meter is probably not enough." Nor should I see plaintiff after plaintiff lean toward his counsel and nod in the direction of the insurance adjuster while asking, "Who’s that?" Counsel should always cover the following fundamentals of mediation:
- Who the players are.
- An estimate of how much time will be needed.
- How "most" mediations proceed: a joint session, followed by breakouts sessions, with give-and-take occurring during those sessions.
- A basic explanation of process confidentiality.
- What it means to demand or offer a certain amount at any given time in the process.
- What is required if the case settles.
Not having common goals in mind
Recently, I was conducting a fairly routine mediation. In the early stages, both the personal injury plaintiff and the self-insured defendant were not thrilled with the opposition’s position. Both counsel seemed aware that their respective client’s positions were a bit off the mark. Eventually, when the offer was somewhere in the $15,000-$20,000 range, plaintiff’s counsel suggested to his client that a reduction of the demand from $40,000 to $35,000 was called for, to move the process along. His stated goal was "to see if you are going to have a decision to make." All was well and good. Until his client said, "fine, but I am not taking a penny less than $50,000."
The case eventually settled, but only after significant time for the client and counsel to have discussions that should have happened earlier – what might the case be worth, and what might we accept? It is crucial to go into the mediation with goals. At a minimum, the plaintiff and plaintiff’s counsel should discuss the following prior to mediation:
- What is the figure we would love, what is the figure we would like, and what is the figure we could live with?
- Do we have a handle on what the expenses are?
- Are the lien or subrogation holders ready to participate in the discussions?
- How well does the plaintiff understand the impact of fees, expenses, and other factors on gross numbers to determine net recovery?
Not understanding that it’s not personal
Lawyers and claims professionals are not, or at least should not be, overly vested in the outcome of any given case. The further one moves away from status as a "professional," who lives with the litigation process daily, the less accurate that statement becomes.
The human resource manager for a 500-employee company sued for harassment probably gets it, but maybe not as well as the seasoned claim representative. The owner of a 25-employee construction company sued in a contract claim may get it a little, but not as well as the HR person. The injured plaintiff, sitting across a table from an insurance defense lawyer and an adjuster, wondering where the driver of the car who T-boned her is, doesn’t get it at all. That is, until you do your job and help her get it. Clients need to be educated as to the following:
- The defendant probably isn’t going to be there, unless the defendant is a decision-maker. You don’t need her.
- The opposing lawyers and decision-makers don’t dislike you, hate you, want to insult you, or want to hurt your feelings...
- ... Unless, doing so makes you nervous about going to trial. Don’t let it.
- The process, by definition, becomes de-personalizing at some point. The insurance company in a personal injury case has considered you as a person in assessing its risk, i.e., what you might get at trial if the jury likes you and things go your way. But once the give-and-take gets going, they are talking about a case, not about you. The better you become as an objective decision-maker, a "risk manager for a day," the better you will be able to weather the storm.
- As long as you are going to accept my advice about being an objective decision-maker, learn how to listen to what the opposing side and the mediator say. The opposition is previewing its strengths and our weaknesses. The mediator will be trying to help you understand risks. Learn to listen to what they have to say to understand different ways to look at the case. The closer your client can come to learning how to think objectively – "like the enemy," if you will – the better equipped he or she will be to handle the process and make sound decisions. The more you can do to get him or her ready to adopt that mindset, the better.
Sending damaging mixed messages to your client
Consider a routine personal injury claim like the one described above. Maybe the case has value ranging from $40,000 (the number you would love) to $20,000 (the number you could possibly live with), with some reasonable "like" numbers in between. Assume the discussion has taken place and your client has given you firm authority to settle at $40,000, a sense that something near $33,000 will do, and a tentative "okay" at $25,000, if things go well in the anticipated call to the lien holder.
Why, oh why, would you then sit down and send a mediation summary that contains an opening demand of $250,000? Might not that impact the client’s thinking? Those are a lot of zeroes to ignore.
Or, take the concept to the defense side, in a contract case with no insurance. You have worked with your client to convince him that he should pay up to $20,000 to the plaintiff, based on a swearing match on the facts and the risk of a bigger verdict at trial. Would you send a mediation summary in which you refer to prejudicial, but clearly inadmissible evidence about the plaintiff’s character, hoping to beat him down to a lower number?
You might say, "Of course not," but it happens. And seeing "evidence" like that laid out in a summary of your position can impact your client’s willingness to stick to the game plan. Clearly, the roles of advocate and counselor are different. Make sure your client knows the difference and understands why what you said to him might differ somewhat from what you say to the opponents and the mediator. Also, make sure that the differences are not so profound as to cloud the client’s ability to objectively see the difference in play.
***While there is no magic formula or template for the "right" way to mediate a case, these suggestions should help counsel educate clients going into mediation, hopefully resulting in a smoother process and a higher percentage of resolutions with which their clients are comfortable.
Dennis Ducharme is the principal of Ducharme Resolutions PLLC, which he formed in 2011, after 26 years as a civil trial lawyer. In addition to ADR, he also provides litigation support and consulting to plaintiffs and defendants. He can be reached at email@example.com.