YourABA: June 2013
YourABA June 2013 Masthead

Handle mediation effectively

Today nearly every case is mediated — and some numerous times. After all, mediation settles cases efficiently and frugally, said Kenneth P. Nolan of Speiser, Krause, Nolan & Granito LLP in a Litigation article. “Parties walk from those rooms without exhilaration or despair, but with relief that the contentious dispute will no longer consume their thoughts,” Nolan said.

He offers these tips on how to handle mediation effectively:

Prepare. There’s a tendency to treat mediation cavalierly, informally. Jot a few notes, grab the file, and wing it. Take mediation seriously. If there’s an issue of what damage law applies, for example, failure to know the elements in all potential jurisdictions broadcasts that you’re not a player. Hence the low offer and meager settlement.

Be realistic. Your adversary and the mediator won’t be swayed by glitzy visuals or tear-jerking harangues.

Anticipate your adversary’s argument and be ready to refute. If liability is contested, whip out the photos and expert reports to prove you’ve considered their contentions and they are easily countered.

The Internet knows everything. Use it. So, before you sob that your client’s poverty was caused by this deliberate breach of contract, make sure you’re aware of the $32,125.98 in taxes paid on his Hamptons summer home.

Most mediators insist that clients (or those with authority) be present. So sit down and go through the process so there are no outbursts. Forewarn your clients that your adversary will belittle their claim, expose a wart or two or simply treat them with patronizing callousness.

Use brochures, photos, videos. Usually, the mediator will request a submission in advance. A short, simple booklet loaded with photos, diagrams and charts is preferred. Succinct excerpts of depositions, critical contractual language, the “smoking gun” email are all that’s necessary.

Mike Holland of Condon & Forsyth, who has defended serious injury and death claims for decades, tells of a plaintiff’s attorney who recorded a video on his iPhone the day before and showed it as proof of continuing disability. It did the trick. Save the expensive accident reconstruction video and “day in the life” film for impressionable juries.

Be realistic. Your adversary and the mediator won’t be swayed by glitzy visuals or tear-jerking harangues. To convince savvy attorneys, you need substance, not flash. A straightforward presentation while acknowledging weakness is effective. You can’t bluff your way to a large settlement. Exaggerated claims and emotion will only be met by skepticism and derision. As Mike Holland reminded me, eloquence is overrated.

Retired Judge Gerard H. Rosenberg, who spent 27 years on the trial bench in the Supreme Court, Brooklyn, wants parties to be flexible. Making outrageous demands or beginning negotiations with a settlement number that is set in stone often leads to failure. Mediation is not trial, Judge Rosenberg notes. You’re there to settle the case. Good-faith negotiations by both sides assisted by an impartial mediator who facilitates but doesn’t force settlement will allow the process to succeed.

Be aware of the interpersonal dynamics. If your adversary has to beat you up to impress her client, remain cool. “Obviously, I disagree. But I thought we were here to discuss settlement.” Everyone in the room has differing agendas. The plaintiff may need an acknowledgment of regret. The defendant may require confirmation that the damages are real. A skillful, strong mediator can navigate the emotional currents and guide the parties toward discussing numbers.

Be patient. A decision to pay an extra $20,000 or to end a three-year war of nasty accusations is not easy. Sure, you can grab your briefcase and stomp out, slamming the door behind you. Your client will beam — man, he’s tough. Everyone else will smirk, wondering when you will grow up.

Be cordial. A recent mediation failed when the defendant’s offer was insultingly low. I politely ended the session and walked my client to her car. A joke, a disparaging remark said to the wrong person can have disastrous consequences.

You must want to settle. If you insist on a trial, tell the other side. I seethe when I drag my client to a mediation only to be told that an offer can’t be made because additional records are needed. Advance notice avoids resentment and mistrust.

Don’t adjourn the mediation. Once negotiations commence, momentum builds. Sure, you have to sit and discuss your next move, but that shouldn’t take hours. Close the deal.

Ultimately, the decision to settle is a business one. Can I do better at trial? Few cases allow you to answer affirmatively and definitively. The overwhelming majority should be mediated.

Litigation is a publication of the Section of Litigation.

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