My wife constantly tells me, “It’s not what you said; it’s how you said it.” Nothing is truer in mediations. Whether an attorney or a client, the statements you make before the mediation and in the opening statement often set the tone for a successful or unsuccessful mediation. Body language is also important. The genesis of this presentation of mediation advice is my observations over the last 16 years of small things that attorneys and their parties have done or not done during a mediation which seemed relatively insignificant, but turned out to be major factors in determining whether the mediation was successful. Many times, the parties and their attorneys do not realize how some relatively small factors can have a huge impact on the mediation. Some of those points are obvious, but they bear repeating.
A. Before the Mediation
- Know the process before arrival – too often, plaintiffs arrive with the explanation that they are going to a meeting to settle the case. If you are an attorney, walking the client through the entirety of the process puts the client at ease and helps him/her prepare. If you are the client, and don’t know the process, ask. It is a simple point, but it happens often.
- Speak to the other side before mediation begins – it is common courtesy and sets the right tone. I once spent hours calming down a plaintiff who was a long-time policy holder when the adjuster did not speak to him before the mediation began.
- Don’t dump new damages on Defendants at the beginning of the mediation – it is an absolute recipe for failure. Despite court orders, no person has unlimited settlement authority.
B. Opening Remarks – “where the most problems occur”
- Listen to other side’s opening – appear genuinely interested, even if you are not. Don’t check your phone constantly, and turn your phone off if you are able. Look at the other side. This is where your body language can impact the mediation.
- A 45-minute Power Point is not needed – in a minor case, you will not enhance the value of your case or strength of your defenses with a lengthy Power Point.
- Treat everyone with respect – don’t ridicule corporate parties in openings. The corporate representative is a person just like you. Many big companies are very safety conscious and lack of respect can really set the wrong tone. Be very careful in your comments about a Decedent if you represent the defense.
- Don’t disparage the other side or their attorney in opening – Once, in opening, I heard a lawyer say, “I have tried this case a hundred times and your lawyer has never tried one.” Do you think that helped?
- Don’t say “I am only here because it is court-ordered” – and you have no case or no defense. If you want to settle, it sets the wrong tone.
- Don’t overstate the strength of case in opening unless you really believe it – in 3-4 hours, if you are pressuring you client to settle, they will remind you of your fighting words.
- Be especially careful about statements about venue, for example, “there has never been a big verdict in this county” or “defendants never win here.” Big settlements are paid everywhere and defense verdicts happen in unlikely places.
- In opening statement as defendant, don’t’ just say I am here to settle your case – look at the plaintiff, and say “this is the other side and I need to give you some perspective as to my offers.” There is a fine line and many disagree with me, but it is very important in cases with a liability defense.
- Know the basic facts and names of key players – nothing tells the other side you are not serious about the case quicker than botching the most basic facts.
C. The Actual Mediation
- Be patient – especially on the defense side. It can take a while to get to know the plaintiff and bring down expectations if it is needed. As attorneys have grown accustomed to mediations, it is important to remember that many clients are new to the procedure. Also, manage expectations as most want mediations to be complete within a few hours.
- Make realistic opening offers and demands – demanding $200,000 to settle a $25,000 case only makes the mediator money. Offering $5,000 initially to settle a $100,000 case is also not productive. I have never seen unrealistic demands or offers procure a better deal.
- Don’t say “I will impeach the other party within an inch of his/her life, but I am not going to tell you how” – unless you are a legendary trial lawyer, empty threats don’t work and have ethical problems. Share the smoking gun or keep it in the holster.
- Don’t threaten to walk out unless you mean it – if you keep saying I will leave unless the other side does X and keep staying, you lose all credibility.
- An apology can go a long way to settle a case – in professional negligence cases or a really sensitive case, the Defendant saying “I am sorry” can seal the deal.
- Shake hands when it is over – it is professional and sets the tone for the next time you deal with the parties.