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How and when to make your demand

June 16, 2015 by Randy Levine Leave a Comment

“Let us never negotiate out of fear. But let us never fear to negotiate.” – John F. Kennedy

ess-chess openJFK was thinking about diplomacy with the Russians when he uttered his famous phrase about fear and negotiation. But I think his words also hold true for the approach we take to most personal injury mediations. We never want our clients to head into a mediation session showing anything but the utmost confidence in the merits of the underlying legal case. But even assuming the law and facts are on your side, there is almost always something to be gained by trying to negotiate a settlement and thereby avoiding the expense and uncertainty that goes along with a courtroom trial.

Negotiation lies at the heart of any mediation. We actually think of negotiation as a process with two distinct stages. It starts with a demand stage in which one or both parties put their positions on the table. The demand stage establishes the framework for the negotiation stage that immediately follows, in which the parties will go back and forth however many times in order to reach a mutually acceptable settlement. As we see it, each of these stages presents a unique set of challenges and issues to be considered for any given litigation. There is an art to making a demand, and there is an art to negotiation, each of which is worth separate discussion. In the remainder of this week’s blog post, we will turn our attention to the art of the demand and then next week we will follow up with a discussion about the art of negotiation.

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Filed Under: Mediations, Uncategorized Tagged With: mediations, mediator, settlements, trial-ready

Trial Ready or Not?

April 21, 2015 by Randy Levine Leave a Comment

shutterstock_234997276This 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.

Filed Under: Insurance Adjustors, Legal Technology, Mediations Tagged With: insurance adjustors, legal tech, mediation, settlements, trial-ready

How to Get the Most Out of Mediation

April 14, 2015 by Randy Levine 2 Comments

shutterstock_221213716This week we begin a new series of blog posts about how lawyers can get the most for their clients out of the mediation process. This topic is fundamental to our business. We are, after all, settlement consultants and advisors. We have extensive experience and insight into how structured settlements can be used to help maximize recovery for clients and we often end up playing a much broader role, advising more generally on settlement strategy. We attend a lot of mediations over the course of a year. This gives us a good opportunity to constantly refine our views about the approaches and tactics that are likely to work best.

We kick off this series of blog posts with a bit of common sense advice. One of the most important things to ensure a successful mediation is to make sure that you have all the right people in the room with the mediator. This may sound obvious to some of you but you would be surprised by how frequently we see lawyers fail to pay heed to this essential point. As Woody Allen once said, “80 percent of success is just showing up.” Nowhere is this more apt than when it comes to mediation; except in the case of mediation, it’s not enough for just the plaintiff and counsel to show up — you need all the right parties on the other side too.

Sometimes this may not be so easy to accomplish. The insurance industry has been following the general trend in the business world by cutting costs for many key functions. We see this particularly when it comes to the role of insurance adjustors, many of whom now work remotely. We call these folks pajama adjustors because most often when we interact with them, they are sitting in front of a computer screen in their home.

This presents a problem when it comes to mediation. It’s not a problem with the pajamas, per se.  But our general experience is that mediation never works well unless all the necessary parties to a settlement gather together around the same table. Real eye contact is a necessary ingredient of negotiation because you have to build a sense of rapport and trust with your adversaries in order to be able to compromise. Dialing in by phone just won’t cut it. You’re paying the mediator good money for his or her expertise, and if the mediator cannot talk to the adjuster — the decision-maker on the defense side — than he or she can not effectively do their job. Having the adjuster on the phone means that the mediator’s message is going through defense counsel, who often have their own agenda for filtering that message.

In most cases, the problem is further complicated by the fact that the defense will often be insured with multiple layers of coverage. Assuming the damages exceed the primary layer, it’s going to be impossible to settle the case unless the excess coverage provider is also sitting at the table. For the plaintiff, this means there’s really no reason to participate in mediation unless all parties necessary to settlement are present or at least represented.

Getting the most out of your mediations is beneficial to you and your clients because everyone saves a lot of time and money by not going to trial. Start by showing up and stay tuned over the next few weeks for more pointers about how to position yourself and your client to take advantage of your next mediation session.

Filed Under: Insurance Adjustors, Legal Technology, Mediations Tagged With: insurance adjustors, litigation, mediations, plaintiffs, trial-ready

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