“I’m not sure we want to mediate this one… Our case is strong.”
Every lawyer has voiced this concern. But maybe it’s not that simple. You can mediate successfully even when your case is strong. Here are some tips.
Mediate from a Place of Strength
Mediation is a good place to show calm, steady confidence in the strengths of your case. Once you do, it’s part of the mediator’s job is to make sure your counterparties appreciate your strengths and bargain accordingly.
How to show that confidence? Try these two ideas.
Remember, There Are Good Reasons to Settle Even the Strongest Cases
There’s a saying sometimes attributed to Mark Twain which goes, “I have been ruined but twice in my life; once when I lost a lawsuit, and once when I won one.”
This sentiment may motivate your clients as well. Clients may want to settle a strong case, to pay a little more or take less, to get all the other benefits of settlement – eliminating the risk of a judge or jury getting it wrong, eliminating mental wear and tear, and (no offense, colleagues) eliminating further expense. Victory has a price; not every client is willing to pay it.
Keep an Open Mind
As Judge Learned Hand famously said in 1944, “The spirit of liberty is the spirit which is not too sure that it is right.”
That’s the spirit of mediation, too. We come together in mediation to learn, to exchange information and perspectives, to add depth to our views. Sometimes, what seems like a lead-pipe cinch at 9 a.m. on the mediation day looks like a real horse-race by noon. If that happens, mediation has served a valuable purpose. The exchange of information will have equipped you to bargain in light of reality, not the too-sure-you-are-right view with which you might have started the mediation day.
With these pointers in mind, even the strongest cases might be settled. Settlement or not, though, exchanges of information, consideration of your clients’ many and varied interests, and maintenance of an open mind will ensure that your mediation day is a success. Your clients will make clear, strong decisions in a calm, informed environment. This will create satisfaction with the process, with the result, and, perhaps most importantly, with your performance as their lawyer along the way.
For several months, in multiple mediations, one side or the other was in the mediation because their case was strong. Sometimes strength came from liability being clear (or there was clearly no liability) and damages being clear (or were clearly low). Sometimes strength came from procedural wins at trial or on appeal, or grants or denials of dispositive motions, or issue or evidentiary sanctions. Sometimes strength came from clear insurance coverage with high limits and at other times coverage was unclear with low limits and a judgment-proof defendant.
Why were these people in mediation when they had such strong cases? The other side always asked “why are we here if they are so sure their case is so good?” There was “nothing” about which to negotiate, and yet someone (the lawyer, the client, or the other side) suggested that the parties mediate. They were there because nothing is certain until the last appeal is ruled upon and, if applicable, money is paid or collected or injunctive relief obtained and performed. They were there to obtain certainty sooner through settlement and to test case strength.
To leverage case strength in mediation you must educate the mediator about why your case is strong and why you are mediating. “Why” means facts, law, and procedure, not conclusions. Provide to your mediator the ruling or opinion or judgment/verdict that confers advantage, as well as detailed factual information and legal standards that apply to the case. In bad faith cases, please provide a detailed, outline-formatted, chronology of the case so that the mediator can easily discern key dates and events in the order in which they occurred.
Test case strength in mediation. While the mediator is not going to be deciding your case, it helps to have someone without an interest in the outcome discuss the case with both sides. This allows for reality testing by both sides.
Share with the other side your written submission in advance of the mediation session. Even when your strengths are “obvious” or have previously been articulated in writing by you to the other side, everyone benefits from knowing what you have shared with the mediator.
Consider how you are going to negotiate in the mediation. Discuss this with the mediator. Making an initial offer (whether it is an ask or bid) that allows a lot of room to move sometimes detracts and distracts from the strength of your position. For instance, if you will accept or pay the policy limit and not a penny less or more, then you may be better served to say that and allow the discussion to focus on the substance rather than the numbers. Or, if the only way the case settles is above the policy limit(s), then indicating that with your opening offer can be extremely helpful (you may even consider an opening bracket with the low at or above the limit).
If you are clear about why you are mediating in view of the strengths of your case and behave accordingly your case has the best possible chance of settling because a third party is working with you and the other side to help everyone reach a rational place to settle.
