Sidebar: Mediation

If I did what I was taught—work like an ox, be respectful, don’t complain—success was likely. It didn’t matter if you cleaned toilets or walked a beat, you would live better than your parents—own a new Chevy, a house with a yard, take a real vacation, like to Florida.

Of course, life was and is never perfect, not with every second woman undergoing chemo for breast cancer and with so many kids battling leukemia. And even I realize that others weren’t as fortunate since I was raised in a wonderful family, if you didn’t mind being sprinkled with holy water for divine protection whenever lightning lit the sky.

But I feel like echoing a line from HBO’s Girls when a nurse tells Hannah, while checking her for sexually transmitted diseases, you couldn’t pay me enough to be 24 again. Maybe I’m just an old fart, but life seems much more onerous today. And it’s not only the shrinking legal world and law firms going bankrupt—it’s a loss of confidence, of optimism, of the assurance of a brighter future. Even the technological marvels of texting, Twitter, Facebook, and the like have made communication more challenging, relationships more fragile.

Our profession has changed as well. I tried an injury case nine months after I was admitted. Now the civil trial is a dinosaur, nearly extinct—a loss of the soul of the profession, some maintain. Almost time, perhaps, for a proper Irish wake. Yet, those ancient days of picking jury after jury and battling adversaries and judges were the joy that made the law exhilarating and rewarding.

But no more. Instead of inspiring a lethargic jury, we sit in lifeless conference rooms and advocate before restrained, thoughtful mediators with nervous eyes. We argue with all the passion of an accountant at tax time. It’s business, everyday business, lacking the fervor of cross-examination, the thrill of closing argument.

Now, every case is mediated—and some numerous times. After all, mediation settles cases, efficiently and frugally. Parties walk from those rooms without exhilaration or despair, but with relief that the contentious dispute will no longer consume their thoughts.

Mediation is the present and future. A few guidelines on how to handle one effectively:

Prepare. It seems this is the first point I make in every column. Yet, there’s a tendency to treat mediation cavalierly, informally. Jot a few notes, grab the file, and wing it. Mistake. If you don’t know the intricacies of the family tree or the medical history, then you’re immediately and silently seen as a lazy bum to be fleeced like some gullible goober staring at the neon billboards in Times Square.

Take mediation seriously. If there’s an issue of what damage law applies, failure to know the elements in all potential jurisdictions broadcasts that you’re not a player, won’t try the case. Hence the low offer and meager settlement. There’s not a worse feeling than leaving money on the table. I know.

Better to respond: Yes, I realize the judge can apply New York law, which allows only pecuniary loss and pre-death pain and suffering. Let me tell you why I believe Pennsylvania law, which will allow significant recovery for noneconomic damages, will apply. And then rattle off your theory. Even if it has little chance of success, the other side will be impressed with your diligence.

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. If your client bounced from job to job, or did time for drugs, toss out names of character witnesses and offer, “You want to depose them? When?”

Don’t forget Facebook, LinkedIn, and other social media. A touch embarrassing to argue that the devastated widower needs decades of therapy, only to be shown a video of his singing “Born to Run” at a karaoke bar. Screaming “It’s not admissible” will only fill the room with laughter.

The net 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—“I don’t want your effing money,” screamed by an upper crust suburbanite, is a classic. Forewarn your clients that your adversary will belittle their claim, expose a wart or two, or simply treat them with patronizing callousness.

Occasionally, I ask my client or a family member to detail how an incident has affected her life. A five-minute presentation by a credible and sympathetic mother who lost her daughter is much more moving than any words you could spout. I want the insurer or CEO to hear the pain, the loneliness, the fear. This also allows a client to convey her loss to those she feels are responsible. Very important psychologically.

Defendants, whether insurers or executives, may also wish to express regret or explain that they were not at fault. Because mediations are often free-flowing, without rigid procedures, your client must be prepared for all possibilities.

Use brochures, photos, videos. Usually, the mediator will request a submission in advance. A short, simple booklet, loaded with photos, diagrams, charts, is preferred. No retired judge will read another boring legal brief or thumb through 100 pages of medical records. 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 grand 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. Hard for callous counsel who don’t believe a word. At least wait until only attorneys are present. A recent mediation failed when the defendant’s offer was insultingly low. I politely ended the session and walked my client to her car. When I returned, the defense attorneys loudly and emphatically let me know that my decedent wasn’t knocking on the pearly gates. They lit into me but good. I responded as I was taught in the schoolyard, using words that are probably still venial sins. I was used to such venom, but my innocent forwarding attorney from the neat farmlands of Ohio was livid. I patiently explained that they were just venting, that they weren’t serious. 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. Once everyone steps into the sunshine, then nosy relatives or know-it-all colleagues inject doubt and uncertainty.

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. Not that much fun, but it works.