About Greg Clayton

Abraham Lincoln once said that if he were given six hours to cut down a tree, he would spend four hours sharpening his axe. This may seem a bit anachronistic in the digital era but the essential point rings true; especially when it comes to mediation of personal injury cases.

Many attorneys see a day spent in mediation as not particularly heavy lifting: drafting a mediation statement and scribbling a few ideas on a legal pad. A day in mediation is a lot easier than taking an expert’s deposition and far, far easier than time in trial.

Comfort zones, however, can instill complacency. If we view mediation of a personal injury case as the client’s day in court, is there any room for casual lawyering? Let’s focus on how plaintiff’s counsel can prepare to make a personal injury mediation both meaningful for clients and successful.

We know that the presence of true decision makers enhances the quality of the mediation process and the likelihood of resolution. What if those decision makers are not parties to a legal case being mediated?

Let’s take this scenario: Husband is the sole plaintiff in a contentious case arising from an auto accident. Counsel are not playing well together and agree on little. At a deposition early on in the case, an insurance adjuster wanted to sit in and plaintiff’s counsel refused to allow this. Routine requests for extensions have been refused and the case has been adversarial at every level.

You either love brackets or hate them. For many years while I was representing clients in mediations, I thought bracketing was a waste of time. Now, in my role as mediator, I have come to believe that bracketing can play an important role in the negotiation process. Here’s why.

As lawyers we are trained to put the emotion aside.  We counsel our clients to look at the practical options and make good business decisions.  We try to stop the emotional tirades and move on to more familiar ground:  prospects for summary judgment, litigation costs and risk.  That is what we are good at.  What we are not so good at is understanding, much less dealing with, the emotional entanglement of these cases.

There is a puzzling disconnect in the world of mediation.  Some insurers routinely fly adjusters across the country to attend mediations. Others seek telephonic participation wherever possible.  Puzzling further, is the practice of some insurance carriers who insist on sending an adjuster to observe a jury trial from start to finish, having earlier refused to allow that same adjuster to travel to a mediation that well might have resolved the case.

What is going on and why?

The explanation seems to trace to a contrarian attitude still found in some claims departments that mediations are a court-mandated headache that gets in the way of important work that needs to be done in the office. 

When I teach Negotiation, I am sometimes amazed at how much I learn from the law students I am supposed to be teaching.  A good example is the perceptive observation by one of my students that “good people skills should be the low-hanging fruit in a negotiation.”  

The point is this:  While many aspects of negotiation are difficult, the seemingly easiest is just working well with others -- being polite, acknowledging opposing viewpoints, showing respect and paying attention.  These, and other active listening skills, should be a given in any negotiation, setting the stage for effective communication, information sharing and working together toward resolution.

In a recent mediation, an attorney shared with me the interesting comment that: “Trials are the result of failed lawyering.”  While that may overstate the case, it struck me as a pretty wise perspective.

While trials have a sacred place in our constitutional, historical and jurisprudential legacy, for most clients they are expensive and terrifying, with uncertain outcomes.  They are a roller coaster with a propensity for ejecting riders from great heights.   

When attorneys negotiate for clients, a clash of cultures occurs.  Lawyers are bound by overriding ethical obligations of candor and truthfulness in their dealings with others.   Negotiators, on the other hand, work in arena where overstatement, "puffing," and even outright deception are often employed to achieve better outcomes. 

What can an attorney do, and more importantly, what should an attorney do when the angel on one shoulder counsels candor and the devil on the other shoulder insists: "Get the best settlement at all costs"?