By Gregory Eaton
Attorneys representing clients at mediation must walk a fine line. You want to get the case settled and at the same time advocate for your client’s position so the other side knows the consequences of not settling. I’ve seen lawyers who are so aggressive and/or arrogant in their opening remarks that I have to spend the first hour of the mediation getting everyone back to the “we are here to try and resolve this case” mode. On the other hand, some counsel are so concerned about being perceived as too adversarial at a mediation that they often fail to articulate the reasons why the other side should try to settle.
Attorneys at mediation must balance the instinct to hammer on their opponent with the goal of building a bridge to settlement. After all, mediation is the forum for resolving, rather than winning, cases. Cases are won, or lost, at trial.
That said, here are some suggestions for attorneys advocating for their clients at mediation.
- Don’t be overly aggressive, arrogant, or impolite during the joint session. Yes, an attorney’s job is to zealously advocate for their client. This can be accomplished by confidently but politely stating your position and the weaknesses of the other side’s case. If you are perceived as being disrespectful or demeaning, your opponent will become defensive and simply stop listening.
- Do take the time to prepare a cogent presentation for the joint session, particularly if you are plaintiff’s counsel. In the nearly two years we have been doing mediations by Zoom, I have really noticed how effective a short but compelling opening presentation can be. PowerPoint is so easy to use on Zoom, and a presentation delivered in a polite but firm way highlighting the strengths of one’s case and the risk of trial for the other side can really set the stage for a successful mediation. Beware of making the presentation too long, however: after 15 minutes or so people’s minds start to wander.
- Don’t make things personal. Personality conflicts are common in litigation, particularly in hotly contested cases. You may dislike the lawyer or adjuster on the other side, and would love nothing more than to beat them at trial. This makes it even more important to adopt a polite demeanor at mediation. If the case has a chance of settling at mediation and settlement would be good for your client, don’t let your personal feelings get in the way. As always in the practice of law, professionalism matters.
- Don’t take the bait. If opposing counsel is rude or insulting, don’t respond in kind. Such tactics are often used by counsel to distract and throw you off your game. Responding politely and with confidence shows opposing counsel that rudeness and intimidation won’t work with you and if they really want to settle the case they need to change their approach.
- Do use the mediator to convey certain points that, coming from opposing counsel, could anger the other side and derail settlement. Many times there is unflattering evidence about one of the parties that, if the case doesn’t settle, could be used at trial. Evidence as to credibility, criminal history and prior injuries are common in personal injury cases. Mediations have a greater chance of blowing up when opposing counsel raises these sensitive issues in opening session. The opposing party becomes immediately defensive and hardened against settlement. Having the mediator raise these issues in private session at the appropriate time usually results in a far less defensive reaction and maximizes use of the information at mediation.
Remember, mediation is the opportunity to resolve the case, not to score points or make the other side angry. There will be plenty of time for that if the case goes to trial.
Greg Eaton is a mediator and conflict resolution consultant with Hess Gehris Solutions.