This week we return our attention to a topic we have discussed previously on the blog (most recently here). It is a question that comes up for consideration just about every time you prepare a case for mediation: should you bring your client to the mediation?
Many personal injury lawyers we know seem to be in the consistent habit of bringing their clients into mediation. There is also a sizable number who take the contrary view.
There’s an old Oliver Wendell Holmes maxim we remember from law school – great cases like hard cases make for bad law. Not to quibble with the venerable Justice Holmes, but in our experience as settlement consultants, we have found that this observation is not so true, at least when it comes to mediation. Great cases and not so great ones both make for good mediations, at least when measured by that all-important yardstick of positive financial outcomes.
With settlement season now in full swing, this week we are pleased to announce the publication of our new e-book: How to Get the Most out of Mediation. You can click here to download your free copy.
For those of you who are regular readers of our blog, you will find some familiar material here, as we have drawn on a number of articles that first appeared on the blog over the course of this past year. Our goal in putting the e-book together was to distill our experience and insights, gathered over the course of our participation in hundreds of mediations, and to present the material in one convenient place so you would have a practical and handy guide to use as you prepare for your next case settlement.
Key topics covered in the e-book include the following:
• How to identify which cases are ripe for mediation
• How to find the best mediator for your case
• How to make your initial demand
• How to develop a negotiation strategy
• How to maximize settlement value for you and your client
We hope you find the e-book a useful tool in your practice. And if you have a moment, please send us an email and let us know what you think. Feel free to let us know if you have any questions or pointers of your own you’d like to share with our readers, to help make this settlement season more productive for all of us.
In our business as settlement consultants we are keenly aware of the different dynamics that come into play in personal injury litigation and how those dynamics can often help promote a negotiated resolution of the case. As we’ve written before, the various weaknesses you become aware of in the course of developing your case, as either plaintiff or defense counsel, will often create an incentive to prefer negotiation over the courtroom.
But it’s not just perceived weakness in your own position that creates an incentive to settle. Sometimes it’s the strength of your position that gives rise to a dynamic in favor of settlement. And in those situations, experience has shown us that it’s important to play your strong hand wisely (and without showing much willingness to compromise) in order to achieve an optimal negotiated outcome.
There’s an old Oliver Wendell Holmes maxim we remember from law school – great cases like hard cases make for bad law. Not to quibble with the venerable Justice Holmes, but in our experience as settlement consultants, we have found that this observation is not so true, at least when it comes to mediation. Great cases and not so great ones both make for good mediations, at least when measured by that all-important yardstick of positive financial outcomes.
Of course, whether your case is a strong one or not will shape your strategy and goals as you head into mediation. With a strong case you will be much less inclined to compromise; your settlement range will be much narrower and you will likely insist on adhering closely to what you think of as full value for the claim. To the extent that you are fully confident about the law and facts of the case, though, there are still significant advantages to be realized from participating in mediation, as we have written in a previous blog post. It’s also important to remember, as we previously discussed here, that whenever you mediate a strong case, you must make sure you’re trial ready before mediation, so the defense fully appreciates how prepared you are to crush them at trial.
But let’s face it – not every case in your office is a sure winner. Every trial lawyer takes on matters where investigation and research turn up potential vulnerabilities in the plaintiff’s case – bad facts turn up in discovery; perhaps the defense has taken a surveillance video that shows your client playing touch football despite a claim of chronic back pain; or maybe you’ve learned that your client will be unfit to take the stand due to his prior history as a child abuser. When any such weakness surfaces in the course of developing your case, mediation becomes more attractive as a means to sidestep jury trial while nonetheless providing a means to secure some settlement value for your client.
From the lawyer’s point of view, mediation provides a means to cull some of the weaker cases from your docket so you can focus your firm’s resources on higher value opportunities. This is why we recommend to our clients that they undertake a periodic review of all pending matters, in order to identify those cases, where a material weakness makes going to trial problematic in some way. From the client’s point of view, mediation may provide a shorter route to recovery, albeit one that is smaller but more certain. Oftentimes, this is a tradeoff that clients are ready to make in the interest of putting a sum certain into their pocket now rather than risking a larger upside in front of a jury.
A recent case we were involved in illustrates how mediation provides a good alternate route to recovery as potential difficulties at trial begin to emerge. The plaintiff in this case was a construction worker who had been injured on the job. The case had to be brought in Westchester County – a jurisdiction not generally favorable to plaintiffs. The plaintiff had filed a motion for summary judgment on liability and the defendant had filed a motion to dismiss. Our client assessed the probabilities as a 30% percent chance for winning the motion for summary judgment as against a 35% probability that defense’s motion to dismiss would be granted. In any event the defense only carried $1 million of insurance coverage. Given the limited upside and the various weaknesses in the case, this was easy to identify as a good candidate for mediation. The plaintiff went into mediation with an initial target of $700,000 to $800,000 but ended up settling at $550,000. This made sense because we were able to provide a structured settlement that enhanced the lifetime value of the plaintiff’s recovery, and brought the financial settlement value into an acceptable range.
When mediation works, everyone walks away happy. In this case, the defense was pleased to cap their expense and exposure at a level well below the full amount of the insurance coverage. At the same time, the plaintiff was happy to achieve finality and closure, avoiding the risk of trial, with a recovery enhanced by a structured settlement. By definition that’s a successful outcome.
So, you’re going to mediation. Now how are you going to pick a mediator? This can be one of the most important factors in determining whether your mediation is going to be successful so it’s worth giving some attention to the factors worth considering in making your choice.
Of course, neither plaintiff nor defendant alone can dictate which mediator to choose. The mediator must be a mutual choice. But that being said, the question is what sort of mediator is likely to do the best job in any given case?
It really makes no difference which company a mediator is affiliated with, as far as we’re concerned. What’s important is the mediator him or herself – what knowledge and background does he or she possess and how well suited will they be to help guide the parties towards a resolution of the case?
The ultimate goal of mediation is, of course, that the parties reach a settlement, which entails compromise on both sides of the case. With the help of a mediator, the plaintiff and defendant find a middle ground between the bid and the ask, and both parties walk away, feeling that they have benefited by avoiding the expense, uncertainty and stress of going to trial.
But while mediation usually enjoys a high success rate, even the best mediators don’t always produce a settlement. In a way, this can be disheartening and may feel like failure, particularly if you’ve invested significant time and money in preparing, paid fees to the mediator and maybe to produce your expert witnesses too, and still end up in the same place. It may feel like you have nothing to show for your efforts except now you’re a day closer to your trial date.
In fact, in our experience there really is no such thing as a completely unsuccessful mediation. Even when you don’t emerge from the session with a settlement in hand there are invariably significant benefits from participating in the process; it will typically better position you to obtain a successful outcome to the case, much more effectively than rushing headlong into trial.
Here are couple other tangible benefits we see emerge from mediation even when settlement itself remains elusive:
So when you go into mediation, you want to give it your best shot to reach settlement. But you also want to bear in mind that mediation is very different from trial itself. It’s not winner take all and both sides should emerge from it better positioned and closer to settlement than you were before heading into it.
This week, we are continuing our series on how lawyers can get the most out of mediations. Last week, we wrote about the importance of getting all of the right people in the room. Showing up is the important place to start, but once you’re there, you better be ready: trial ready.
What does trial ready even mean?
To start with, it means that you have already addressed all essential motion practice related to the matter in hand. If the case warrants a shot at summary judgment on liability beforehand without going to a jury, then you should have already fully exhausted all avenues of motion practice before walking into the mediation (i.e. Labor Law 240). If you go to mediation too early, before you’ve taken that step, you’ve just handed a sword to the defense to argue that they can defeat a motion for summary judgment. It can,also give them a psychological edge in thinking that you are not standing fully behind your case and you’re willing to take a discount.
Trial ready also means you’re walking into mediation ready to present your case, having fully prepared your arguments and evidence as you would before heading into court for the first day of trial. Some lawyers come equipped with a full trial binder and courtroom blow ups, subdivided into sections and categories. Some more tech-savvy lawyers like to show up with their laptops and iPads loaded up with Powerpoint presentations and all the x-rays, expert disclosures, and other key demonstrative evidence. Whether you’re new school or old school, the point is that you come into the room with everything all teed up, so you can walk the mediator through all the essential elements of the case. A lawyer who walks into a mediation session with nothing more than a few bullet points jotted down a yellow piece of paper and a disorganized redwell is doing a disservice to his client, by squandering a real settlement opportunity for want of proper preparation.
We should clarify, though, that a trial binder, blow-ups and visual aides are impressive but also not always necessary. In fact, we’ve worked with some excellent trial attorneys who show that they are trial ready in mediation sessions without a single piece of paper. They prefer to sit down in front of the mediator, defense attorney and adjusters and present all the facts and evidence purely from memory. This can be equally effective because it shows the lawyer’s ultimate ease and confidence with the facts and legal issues. It’s not a matter of bluffing so much as a different way of demonstrating the level of your preparedness.
A final point about preparedness: we think it makes sense to have all of your experts lined up with your 3101(d) expert exchanges in the hands of the defense. Some lawyers we know don’t want to spend the money until they have feel they must. But we think that’s penny-wise and pound-foolish. Nothing can be as effective as putting your money behind your case before mediation in order to demonstrate your commitment and confidence in a case.
In our experience, attending hundreds of mediations over the years, we see coming in prepared as the single most important determinant of success. Preparation, Preparation, Preparation. The more prepared a lawyer is, the better the outcome in mediation is going to be.
