Civil and commercial litigation cases most often resolve by a mediated settlement agreement. Thus, mediation is one of the most critical days in a case, despite the months or even years of litigation. Ironically, many litigators attend law school and receive no formal education on how to represent a client at mediation. As a result, young attorneys learn by watching others, who are successful and unsuccessful, and by trial and error. I asked many mediators and seasoned practitioners, what young attorneys do wrong in the mediation process and tips to help them become more successful. This practice point is meant to provide three of the most consistent responses to my questions. It is important to note that many practitioners stated that the issues identified are not exclusive to younger attorneys, but attorneys in general.
Attorneys find difficulty crafting good mediation statements. The mediation statement should provide a road map to the mediator for a successful settlement. Attorneys should be sure that the mediation statement has the right information, and is not overly long or technical. The mediator is probably going to read the summaries of the parties probably for an hour or two the day before the mediation, so attorneys should be mindful of the length of statements and use the space wisely.
The first few sentences should explain to the mediator who you represent and who the other parties involved are, and briefly summarize the issues in dispute and what is at stake. This summary should come before providing, in more detail, the key facts, claims, and defenses. The attorneys know more about the case than the mediator, but the attorneys should be able to provide enough detail for the mediator to quickly learn the facts and understand the claims, defenses, and background of the parties. Additionally, attorneys should include a summary of the status of discovery and case, in general. The statement could also touch on expert witnesses, dispositive motions, prior negotiations, offers of judgment or proposals for settlement, and who is attending the mediation.
Attorneys fail to properly manage client expectations. It is important to manage a client’s settlement expectations if they are completely out of line with what the lawyer knows as a fair settlement range. Some attorneys do not provide their clients with all facts, good and bad, leaving a client with an inflated value of the case. Their valuations come from a variety of places, whether from large verdicts seen on TV or the passion of their subjective experience.
How attorneys can begin the difficult process of adjusting the client’s expectation is to first identify where the client’s valuation of the case is coming from. After determining where the client’s valuation is coming from, the lawyer can then discuss generic problems without focusing on the nuances in the client’s specific case—for example, the cost of continued litigation, uncertainty with juries, the attorney’s experience with similar cases, venue considerations, etc. Largely, this discussion would address the cases that the client may have read or heard about and then compared to their own. Finally, if all else fails, the lawyer can share particular flaws with the client’s case before the client is confronted by them by opposing counsel or the mediator.
Attorneys do not make good opening statements. There is a split between attorneys who like and dislike opening statements at mediation. However, it could be extremely beneficial to begin a mediation with a persuasive opening statement. Not just persuasive to the mediator, but to the decision maker on the other side. Attorneys should stick to the facts of the case. The best statements are informal and are directed to the opposing decision maker, as “the one chance I have to speak to you informally.” It is the opportunity to not repeat legal arguments the other side heard 10 times, but provide the strengths and weaknesses of the case. It may turn out that the decision maker has not been privy to the weakness of the case (due to the opposing counsel not managing expectations as discussed earlier), which provides the jolt to begin the negotiation and settlement process.
Being brief, specific, and strategic with both the mediator—with submission of a good mediation statement, and in managing the expectations of the client in advance of the session—will help resolve the case.
Demetrius Pyburn is a litigator with Haynsworth Sinkler Boyd, P.A. in Greenville, South Carolina.
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