October 02, 2017 Practice Points

Advantages of Mediation: Tips for Litigators

By Crystal Clopton

For many legal professionals, mediations and settlement conferences are interwoven into the litigation process. These forums greatly aid with the resolution of cases and assist courts with reducing heavy dockets. For a variety of civil matters in states such as Texas, Nevada, California, and New York, settlement conferences are mandatory. It is an opportunity to resolve the litigation without the expense and uncertainty of trial.

A common misnomer is that "there are no wins in settlement;" contrarily, the opposite of that statement is true. Everyone wins in settlement. Both parties can reach a mutual agreement to resolve the issues giving rise to the litigation. To achieve a win, it is very important to have a strategy when entering the mediation and have a plan for implementing the strategy during the mediation.

Mediators are experienced legal professionals. Often you will encounter many attorneys and judges, who are experienced with your area of law/industry. They are often able to give great insight regarding the weaknesses of your case and the direction the litigation may take. This is a very invaluable opportunity that both the plaintiff and the defendant should take full advantage. However, to get a grasp of your position and your case, it is important to provide the mediator with a mediation brief. Mediation briefs are not always required but are very helpful in reasserting your position going into the mediation. This gives the mediator your understanding of the facts and the law that supports your position. The mediator will help the opposing side see the case from your perspective and vice versa. The meeting of the minds is essential to settlement. When both sides can agree to the facts of a matter, it alleviates one of the primary hurdles of getting to settlement. Once the facts are understood, the next step is placing a value on that issue. This is when it is important to know your client and your adversary.

The plaintiff's passion often fuels the litigation. When a plaintiff has been wronged, or believed he/she has been wronged, he/she will often view the litigation process as a tool in pursuing his/her justice. He/she may be unwilling to give up because he/she prefers to "roll the dice" at trial. If the case has advances through discovery, both parties may have a firm grasp and understanding of the facts giving rise to the litigation. It is often difficult to get to the root cause of the plaintiff's issue through interrogatories and admissions. Depositions are very helpful, but you must ask the right questions to get the right answer. Due to mediations and settlement conferences being confidential, the information learned cannot be used in the litigation. The parties are more relaxed and willing to openly exchange information. It is vital to know your client, otherwise you may receive surprise information during the mediation that may completely change your position in the litigation. Often important facts and motives illuminated in mediation aid in getting to settlement. It is much easier to resolve a case in mediation if you know what the other side wants.

It is essential to have a preliminary calculation of damages, fees, and costs associated with the litigation. It is important to understand how statutory damages are calculated by both sides and which pled causes of action allow for attorney fees. This gives the mediator and opposing counsel a window into the value that is placed on the case. Keep in mind that plaintiffs aim high and defendants aim low, but the mediator will bring both to a happy medium.

As attorneys, we take pride in our work, but at times a bit too much. Be careful of your ego. Remember that your role is to be an advocate for your client and get your client the best possible resolution. It is not uncommon for attorneys to roll the dice during mediation by representing to their clients that they can get more at trial. This is a dangerous representation because that guarantee cannot ethically be made. At times, clients walk away from ideal resolutions only to receive nothing. Clients either lose at summary judgment, or at trial. For attorneys, a wise saying goes a long way at mediation: "Sometimes you win cases that you should not have won and you lose cases you should not have lost." Surprisingly, many settlement deals fail due to attorney fee disputes. Mediation is a great way to obtain a win for your client without the uncertainty of the outcome.

Crystal Clopton is a managing member of Davis Clopton PLLC in Dallas, Texas.