Bar News - October 19, 2016|
Alternative Dispute Resolution: Mediation Strategies for the Not So Faint of Heart
By: Dennis Ducharme
Civil trial practitioners in the New Hampshire Superior Courts now live in a world in which mediation is virtually mandatory. Rule 32 states that the court “may” order the parties to mediate in any case, but the rule suggests few exceptions from the ADR requirement and, in practice, few waivers are granted by Superior Court judges. Stories of parties being told to mediate in short order at trial management conferences or lose their trial date are common.
The advent of mandatory mediation has led many lawyers to approach mediation in rote fashion. Mediation summaries are often cookie-cutter, filled with boilerplate language and little substance. Counsel frequently adopt a “don’t give an inch” posture in their summaries and opening presentations, followed by quick concessions in early break-out sessions with the mediator. Opening comments in group session are often from counsel only, with very little said beyond what was in the written summary.
Additionally, a high percentage of mediations involve a cat-and-mouse game of numbers being exchanged for the first hour or two, with neither side showing a willingness to engage the mediator in defining a goal and finding a way to get there.
These things are not true about all lawyers or every case, but they do happen. For those willing to try some different approaches, here are a few suggestions for breaking out of these common mediation ruts:
Give Substance to the Summary
A bare, cold statement of what the case is about, such as “Joe Schmoe incurred $8,911.42 in bills and $3,610 in lost wages,” or “the defendant’s insurer contests the nature and extent of Joe Schmoe’s injuries,” doesn’t offer a lot of insight. Telling your audience a story about the case from your perspective is much more impactful.
This statement gives more meat to the plaintiff’s case in just two sentences: “Joe Schmoe’s bills and wages do not reflect the extent to which his neck pain has lingered. His family could not afford for him to miss any more work than he did, and he paid for his perseverance with pain that turned him into a couch potato every day after work.”
Perhaps Joe will understand the carrier’s position if the summary reads: “While Mr. Schmoe may believe all of his neck pain is causally related to the accident, he needs to face the reality that even his own treating doctor concedes some of his difficulties flow from the strenuous nature of his work…”
Cases settle when both sides assess risk in a meaningful way. Just as good trial counsel make smart tactical decisions about what issues to try to a judge or jury, counsel should consider making concessions in the context of a mediation. Making specious arguments on weak issues can hinder your ability to convincingly make compelling arguments on your strong issues, and plausible arguments on issues which fall somewhere between.
The goal in mediation is to present your case in a way that makes the other side see risk. Watering down a good injury claim by pursuing a thin wage claim can make an insurer less concerned about your ability to present a compelling case to the jury. From the defense perspective in the personal injury arena, contesting a clearly losing liability claim threatens your ability to make inroads into questioning a plaintiff’s damages. These are just two examples, but the principle applies in all cases. Spending time on unrealistic positions not only wastes the time spent, but also can impact the stronger aspects of a case.
Consider Letting the Client Talk
in Group Session
Many lawyers have a fear of giving “free discovery” in mediation. While not called for in every case, allowing a client to talk, with careful preparation, can be helpful.
In many business disputes, allowing the client explain his or her position can cut through animosity and baggage built up between people who once co-existed profitably before a relationship went sour. For example, in a commercial landlord-tenant case, two minutes of sincere explanation about why the tenant needs time to pay, and wants to pay, might be the impetus to structuring a deal that all parties can live with. In employment cases, a few words from an employer, employee, or both about what went wrong can be extremely helpful in breaking down barriers to resolution.
Consider Letting the Insurance Adjuster Talk
Many mediators spend a great deal of time explaining to plaintiffs (and their lawyers) how insurance companies think. That can be an important part of what a good mediator brings to the table. But having the adjuster explain his or her role, approach to assessing risk, and willingness to settle a case for a figure that reflects that assessment of risk can be especially effective.
This helps the plaintiff understand that the insurance company consists of people thinking about the individual case presented and is not some monolithic black box. That being said, having an insurance representative stridently argue the facts of the case and the weakness of the plaintiff’s position can be a big detriment to opening dialogue. If that needs to be done, let counsel do his or her job.
Give the Mediator a Target
Many mediations turn into exercises in trading numbers based on the presumption that the other side will “get the message” the numbers are intended to send. That can work at times, but it also increases the risk that the intended message is not received and that a case gets bogged down in “doing the dance” and never settles. If a mediation is going to involve only numeric ping pong, one might ask why not just make a series of phone calls and save the cost? The point is valid.
One of the senior partners I worked under when mediation became preferred under the original Rule 170 in the early 1990s was a strong proponent of “co-opting” the mediator. He believed that the first party to clue the mediator in to a target range was more likely to get the case settled in that range. My experience, both in representing litigants and as a mediator, confirms his judgment.
The sooner one side gives the mediator a sense, to be kept in confidence, of where it wants to get, the sooner the mediator can work toward a concrete goal, rather than an abstract one. This does not mean that party will not be pushed to go a little further than when the time comes. Nor does it necessarily mean the mediator won’t try to get the case settled for a different number. It does, however, help take the process from one of complete guesswork, to one of finding a way to get to a result the mediator knows will satisfy at least one side.
No one tactic or technique fits every case or every lawyer. Negotiating a settlement is anything but a one-size-fits-all process. These tips offer some options worth trying, keeping in mind that every case is different, mediation is a fluid process, and counsel and parties need to approach a negotiation in a way that they feel comfortable with, given the particulars of the case at hand.
Dennis Ducharme is the principal of Ducharme Resolutions, which he formed in 2011 after 26 years as a civil trial lawyer. In addition to ADR, he continues to do trial work, and provides litigation consulting and support services to both plaintiffs and defense counsel.