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Gaynor St. John, Phillip McCollum, and Allen Schreiber of Schreiber ADR recently held a CLE webinar sharing their best practices for mediation success. The webinar is available now for on-demand viewing and CLE credit on AIM’s website.
Here are a few key takeaways:
Hire a Mediator That Fits the Case
Many attorneys, out of habit, use the same mediator time and time again, or allow opposing counsel to choose the mediator. Avoid these mistakes by looking for a mediator with some experience in the area of the dispute. Ask around…Who is mediating your type of case? Who will be a good fit with your client?
Think of Your Damage Model
In the months and weeks before the mediation, develop your damage model. Determine outstanding liens, subrogation interests, expert fees, attorney fees and other reimbursable expenses that directly impact your ability to get your client’s case resolved. Don’t forget – is med pay available, or if paid, is there a med-pay subrogation? Call ahead of the mediation to determine what reduction is available on these expenses. Call to find out if the UIM carrier is participating and willing to contribute to settlement.
Position Statements Must Include Strengths & Weaknesses
The best confidential position statements are the ones with the most detail. Include photographs, video and key deposition testimony. What are your strengths and weaknesses? Now is the time to educate your mediator. Let the mediator know if you are willing to let the mediator share any portion or all of your position statement with opposing counsel.
Expect a Call Pre-Mediation or Make the Call Yourself
A phone call between lawyer and mediator before the big day is essential. The mediator will gather key information from you that you may not want to put in writing – ie, your client’s desire to settle, temperament, presentation to a jury, unrealistic expectations, etc. Discuss with the mediator who you are bringing to the mediation. Is that person the decision maker? If not, let the mediator know that the decision maker will be available by zoom or by phone.
Anchoring the Mediation Numbers
Have several conversations with your client about your opening demand. Create a zone of agreement based on the potential broad verdict value versus the settlement value. Opening demands in the stratosphere only create pushback in the defense room. Are you demanding far more than policy limits? Staying in this zone for multiple rounds of negotiation simply stalls the process. Anchor your numbers in reality.
Encourage Your Client to Participate in a Candid Caucus
The client needs to understand exactly what’s happening on his behalf. Without perspective, there’s no trust. Encourage your client to share, participate, engage. This is your client’s day. Other than the moment your client selected you as his attorney, this is your client’s best chance to be heard and make decisions.
Confidentiality: Tell Your Mediator Everything (Then Be Specific on What Not to Share)
It’s important to realize that when you’re in litigation, you’re fighting. But in mediation, you’re talking. The difference between litigation and mediation is the rule of confidentiality. This allows for a free-flowing exchange of information. Tell your mediator everything and then tell your mediator what can and CANNOT be shared. Develop trust with your mediator.
You’ve Settled the Case! Put It In Writing.
You and opposing counsel should memorialize the agreement before the mediation adjourns. The mediator will facilitate the execution of the document. The general terms of the agreement should be signed by both parties and attorneys. Don’t forget to include a deadline for payment if this an essential term to your client.