Are you Prepared for Your Personal Injury Mediation? — Plaintiff’s Case

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.

Eliminate surprises.

While “Perry Mason moments” may have a place in the courtroom, they don’t help you in dealing with insurance adjusters who roundtable, value, and reserve cases weeks before the mediation. Update your medical specials well in advance, share tax returns and lost income information, and ask if the adjuster and defense counsel have everything they need to assess the case. If the case is grossly under-reserved, you are not going work miracles at mediation and the case is unlikely to resolve. Proper reserving is as much a function of advance work by plaintiff’s counsel as proper evaluation by the carrier.

Get liens under control.

Contact the lienholders to try to negotiate liens well ahead of the mediation. Let them know of the date and time of the mediation and get phone numbers where they can be reached during the mediation if lien issues become important. If you are dealing with CMS (Centers for Medicare and Medicaid Services), get a conditional payment letter ahead of time. If you have a large workers comp lien, invite the carrier to attend the mediation with counsel.

Make a demand well before the mediation.

This goes back to the concept of surprise elimination. Don’t walk into the mediation without a prior written demand on the table. Demands assist the reserving process. They also ensure that the claims person who shows up at the mediation is someone with appropriate settlement authority.

Prepare a negotiation game plan.

The best negotiators prepare hard. Instead of just coming up with a “bottom line,” it may be useful to work up three settlement ranges: (1) the “home run” settlement that would exceed expectations; (2) the good settlement that makes everyone reasonably happy; and (3) the difficult settlement that will be a challenge but possibly could work. It also may help to anticipate starting offers and responses, and to identify information that can be provided to the mediator to help in the other room. If there are key documents that refute anticipated defense arguments, prepare extra copies to provide to the mediator. Come to the mediation armed with a breakdown prepared of litigation costs to date and expected litigation costs through trial, so you can counsel your client on the true economic value of a settlement today versus taking the case through trial.

Meet your client in advance.

Most personal injury clients are unfamiliar with mediation and come into the process, at best, nervous and uncertain; and at worst, terrified. Sitting down with clients to explain the process in person a few days before the mediation is time well-spent:

  • Walk through the nature of mediation and how a typical personal injury negotiation may go.

  • Talk about the role of opposing counsel and the role of the mediator.

  • Cover the confidentiality of the process and the need to stay off social media.

  • Discuss issues that may come up in the mediation and potential settlement ranges.

  • Decide together if your client will have a speaking role in a joint session and what might be said.

  • Provide the client with a copy of mediation submissions by opposing counsel and go over these.

Bring along a structured settlement advisor.

If this is a large value case where a structured settlement might have a role, consider inviting your own structured settlement advisor to the mediation. There are capable people in this field who will attend mediations without charge and assist your client in understanding ways to invest a settlement to provide tax-free income, protection, and growth. While structures are not suited to every case, they can play an important part in a significant case.

Plan something to say.

Hopefully, you have shared a detailed written mediation summary with both the mediator and opposing counsel in advance of the mediation. This should be an advocacy piece that fully and fairly presents your case. Your written submission, however, does not take the place of oral advocacy. If there is going to be a joint session, use this as a chance to highlight “big picture” issues or to directly address issues that you know will be important to the defense. The most effective counsel do not use the opening statement for chest pounding and threats, but instead focus on being persuasive to their target audience: the adjuster. Credibility is just as important in mediation as in trial, so concede points you can’t win, but offer compelling reasons why the case creates risk for the defense side. Visuals or handouts can be effective in this process, if judiciously employed.

Mediations count.

They are an opportunity to give defense counsel and the adjuster a chance to see what they may face at trial. They are a chance to present your case in person rather than on paper. They are also a vitally important day for clients, who have a day to participate and decide whether to resolve their case or take it to trial. Taking the time to properly sharpen your axe can make a real difference in what could be the most important day in your client’s case.


This article originally appeared in the June 27, 2019 issue of Maine Lawyers Review. Reprinted with permission.

Finding a Seat at the Table: Allowing Non-Parties to Participate in Mediation

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.

The parties arrive at mediation, and the plaintiff is accompanied by his wife. Defense counsel, apparently seeking a little payback, announces that because the wife is not a party to this case, she is not going to sit in on the mediation process. Counsel for the plaintiff responds that if the wife cannot sit in, the mediation is not going forward. The mediator is faced with mediating before the mediation can even begin.

Let’s focus on what is occurring. Counsel are wrapped up in a personal power struggle potentially at the expense of their client’s interests and the success of mediation process. Technically, the defense position is correct: non-parties do not have “right” to sit in on a mediation. But is this really wise?

In my experience it is not. If the husband wants his wife there, it is probably because he would not be comfortable making an important decision about resolving his case without her input and participation. Her absence is going to create a problem. She may not be a “party” but she is a decision maker. If the husband is left having to consult with his wife by telephone during the mediation, the process suffers.

But what about confidentiality? Is there anything to stop the wife, not a party to the litigation, from posting on social media about the pitiful amount offered by the insurance company or the disparaging comments made by defense counsel during the mediation? This is a valid concern. If this a judicially mandated mediation, the court may not even have jurisdiction to police a breach of confidentiality by a non-party.

There are several options that can allow a non-party to participate while still preserving confidentiality:

  • Ask the non-party to execute the mediation agreement “as to confidentiality”;

  • Allow the party requesting participation of a non-party to assume full responsibility for confidentiality by both participants;

  • Request that the non-party sit out of any joint sessions, while being allowed to join in any private caucuses; or

  • Include a stipulation in the mediation agreement that non-parties will be allowed to participate subject to the same confidentiality obligations as the parties and consenting to the court’s jurisdiction should there be a breach.

I have seen many situations where the non-party ended up being a voice of reason in a mediation and was key to resolution. While it is possible that non-party influencers will make a mediation more challenging, it is usually worth the effort to find a seat at the table for everyone who counts.

In Praise of Brevity

There is wisdom in the old saying “talk less, say more.” We sometimes assume in speaking and writing that if a little is good, a lot will be better. Often, the opposite is true.

When sending materials to a mediator on an important case, it is tempting to overdo it. Do you attach the three critical doctor’s notes or do you provide the entire 250-page medical chart? Do you excerpt the one paragraph of contractual language that controls or do you err in favor of sending the entire 100-page licensing agreement? Do you summarize your client’s case in 15 minutes or go on for over an hour?

I think I speak for all mediators when I suggest that less is usually more.

And on that note, I am done.

Bracketing Your Way to Settlement

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.

What is a Bracket?

Let’s take a familiar scenario where parties start far apart in a mediation. Each side thinks the other needs to “get serious” and tries to emphasize the point by making limited moves. Small moves beget smaller ones and soon the negotiation is headed nowhere. The gap between the parties seems insurmountable.

One approach to address this situation is a bracket, which is no more than a conditional offer: “We will make a significant move to X if you promise, in return, to make a significant move to Y.” Movement by one side is conditioned upon movement by the other.

Bracketing in Practice

Consider the situation where the demand is $200K and the offer is $25K. The plaintiff might suggest moving down to $150K if the defendant agrees to come up to $75K, creating a proposed bracket of $150K/$75K. The defendant, in turn, might reject that bracket and instead propose that the plaintiff come down to $100K if the defense goes up to $50K, resulting in a counter-bracket of $100K/$50K.

At this juncture the two brackets seem irreconcilable, but something important is occurring. The plaintiff is suggesting that the landing area for settlement is between $150K and $75K. The defense is suggesting, in response, that the landing area is between $100K and $50K.

If we compare the mid-points of the two brackets, the plaintiff might be signaling a willingness to go to $112,500 to settle while the defendant might be signaling a willingness to go to $75,000. If we look at the mid-points (bracketing the brackets), the parties might only be $37,500 apart.

If we now consider the mid-point of the mid-points (the mid-point between $112,500 and $75,000), is there a possibility the case might resolve at $93,750? Perhaps.

What Can Bracketing Accomplish?

  • Signaling Settlement Positions. As seen in this example, bracketing allows the parties to signal to each other and to the mediator where they hope to end up, but under the protection of a conditional offer. It is a way to share information with the other side in the face of an impasse. Whether any bracket is accepted is less important than the protected signaling it allows.

  • Ending a Stalemate. When the parties are stalled in a pattern of reactive negotiation, where making a point seems to be more important than making progress toward settlement, bracketing breaks the pattern and changes the discussion. It can instill hope into an otherwise hopeless negotiation.

  • Opening the Door to a Discussion about Settlement. In situations where brackets are exchanged, the mediator now may have an opening to talk frankly with each side about the “end game” of the mediation. As settlement ranges become clearer, settlement becomes an easier discussion.

  • Speeding up the Negotiation. There are times when a bracket proposed by one side is accepted by the other without modification or with a modest revision. This moves the case closer to resolution without a pattern of smaller and smaller moves, saving time and expediting resolution.

  • Keeping Parties at the Table. When parties to mediation get frustrated by smaller and smaller moves by the other side, they tend to get angry and talk about leaving the negotiations. Bracketing allows everyone to re-engage in the settlement process, diffusing anger and encouraging a sense of hope. All of this may allow a skilled mediator to find a path to resolution.

A Mathematical Trick

To use brackets effectively you have to be able to calculate mid-points quickly in your head. It took me a long time to figure out the simplest way to do this.

To find a mid-point, you add the two numbers together and divide the total by half. With a $150K/$75K bracket, the two numbers add to $225K and half of that is the mid-point of $112,500. With a $100K/50K bracket, the two add to $150K and half of that is $75K. While this may be obvious to many, it certainly wasn’t to me.

Conclusion

Brackets are not suited to every negotiation and they are not suited to all negotiators. However, they can be an important tool for moving a mediation forward and helping a stalled negotiation get back on track.

Reprinted with permission from the New Hampshire Bar Association. Originally printed in the New Hampshire Bar News on October 17, 2018: https://www.nhbar.org/wp-content/uploads/fliphtml5/42/flipbook.html#p=28

Negotiations and Love Songs: Dealing with Emotions in Mediation

Two disappointed believers
Two people playing the game
Negotiations and love songs
Are often mistaken for one and the same

Paul Simon, Train in the Distance

In characteristically cryptic fashion, Paul Simon’s Train in the Distance details the collapse of a relationship against the haunting backdrop of a train in the distance:  “Everyone loves the sound of a train in the distance / Everyone thinks it’s true.”  It is a song about optimism, failure and, maybe, just maybe, a bit of hope.

Then, as that far-off train whistles by, Simon drops the line:  “Negotiations and love songs / Are often mistaken for one and the same.”  Though I have listened to this song many times, I still don’t know what this means.  

The cynical view is that personal relationships, including the love songs, are all one calculated negotiation from start to finish.  But that doesn’t seem quite right.  

Instead, Simon could be making the point that after the collapse of a relationship, everything blurs together:  the love songs that characterized the good, early days, and the unhappy negotiations about custody, alimony and possessions, which follow.  Seemingly, the two are opposites and hard to confuse, but when a relationship falls apart everything becomes intertwined.

Those of us who make our living after the love songs go silent know the confusing confluence of emotion and rationality when personal relationships intersect with the law.  Divorce cases are the easy example.  We also see this with parents who pass the family home to adult children who are incapable of getting along without parental supervision.  Or trust litigation among family members who have stopped trusting.  Or suits between parents and children who have become estranged in ways unimaginable to strangers.

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.

When we mediate cases involving failed personal relationships, emotions that may have been tamped down come rushing back.  Tears flow and memories intrude.  I have learned that this needs to happen.  Handing your client a box of tissue and awkwardly changing the subject is the wrong approach.  If someone is crying we have to find out why.  Only then can we begin to find legal solutions that will work.  

Some of the most gratifying moments I have had as a mediator are when parties with a destroyed personal relationship make it all the way through a very difficult mediation to a settlement, and then ask if they can talk privately with each other, without their attorneys present.  While their attorneys nervously pace outside, important words get said and damaged relationships begin to heal.  While rare, I have seen it happen more than once.  I’m hoping it will happen again.  

It’s kind of like a train in the distance.   

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Reprinted with permission of Maine Lawyers Review.

 

Why Insurers Miss the Boat by not Insisting That Their Adjusters Attend Mediations

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.  Some carriers continue to view mediation as a necessary evil as opposed to an opportunity to resolve claims and close out files.   In my view, they have this completely backward.

Those of us who mediate know that personal participation increases resolution rates.  That alone should be enough to encourage personal attendance.  But the reasons to attend mediations in person go further.

Often, adjusters have not had a chance to meet claimants to size them up as potential witnesses.  Mediation creates that opportunity.

Personal attendance also allows claims adjusters to:

  • Interact with all parties to the mediation;

  • Communicate that the case is being taken seriously by both the insurer and counsel;

  • Assess the effectiveness of counsel in presenting the claimant’s case;

  • Use their knowledge of the file to help out counsel and the mediator;

  • Work as a team with defense counsel;

  • Provide a separate set of eyes and a separate perspective as negotiations unfold; and

  • React nimbly to what is taking place during the mediation.

While many courts encourage or require personal attendance of decision makers at mediations, those rules should not be the driving force here.  Insurance carriers who are serious about effective claims handling should be present during of the single-most important day in the life of a lawsuit -- not the day a case goes to the jury, but the day when the claim can resolve at mediation without a trial.   

The investment in time and effort is worth the price.  If you have doubts, just ask a mediator.

 

Civility as a Negotiation Strategy

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.

Most of us who mediate see occasional lapses in these most basic undertakings from otherwise capable counsel:  answering cell phones in the middle of a mediation; remaining on the phone when a mediator returns to the room; or worse, typing on a phone while opposing counsel is delivering opening remarks.  Phones are not the only culprit:  eye-rolling, head shaking, derogatory comments, and interruption of presentations all can set a negotiation on a backwards path.

Civility can be as simple as thinking to ask the other side if they would like to join in a food order if a mediation is going into evening hours.  If clients or counsel have a deadline by which they need to conclude the mediation, mention this early and explain the reasons instead of springing this on the other side at the last minute.

Bad manners ultimately communicate a lack of respect.  They do not encourage compromise.  Instead, they have a polarizing effect, driving parties with conflicting positions further apart.  They elicit visceral responses, increasing the perceived areas of dispute and undermining the effectiveness of the boorish party.  Rudeness is not persuasive.

If parties honestly want to explore resolution in a negotiation setting, people skills should be the easiest part of the process.  Good manners, social skills and professionalism should be as important as our position papers.  Civility is the low-hanging fruit that enhances the effectiveness of negotiators and facilitates meaningful conflict resolution.

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Thanks to William R. LaBarge, J.D. Candidate at Vermont Law School, for inspiring this post.

 

 

Trials: a Failure of Lawyering?

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.   

As counsel, we are somewhat inured to the terror of public speaking.  We forget what it is like for a client lying sleepless at 3:00 a.m. facing the prospect of being cross-examined in public the next day.  If you give most people the choice of:  (1) being up in front of a judge and jury for hours answering a lawyer’s questions, or (2) being locked into a dark basement full of snakes, they start asking how big the snakes are.

I have taken a lot of clients through trial.  Some have had good outcomes.  Not a single one has ever said:  “I hope we can do this again soon.”  

So, how do we help clients resolve serious disputes without the torment, delay, and cost of trial?  

  • We become better listeners, trying to learn what the client values instead of what we, as attorneys, may value.

  • We become better negotiators, looking for convergent interests, creative solutions and opportunities for resolution short of the trial process.

  • We treat mediation seriously, bringing prepared decision makers to the table and working hard to find a path to resolution.

Trials may constitute the pinnacle of our professional achievement as attorneys.  In most situations, however, taking a case through verdict may represent a failure of our most important duty: to protect and assist our clients.
 

 

The Law of Liaring: Truthfulness in Negotiation

A Clash of Cultures

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"?

Governing Ethical Rules

The first place to turn is the Model Rules of Professional Conduct.  Rule 8.4 sets forth a broad prohibition against conduct involving "dishonesty, deceit or misrepresentation."  Rule 4.1 further specifies that an attorney may not "make a false statement of material fact or law to a third person."

Some helpful guidance can be found in ABA Formal Opinion 06-439 which focuses on a lawyer's ethical duties while negotiating in a mediation.  Opinion 06-439 reaffirms that a lawyer cannot make false statements of facts material to the dispute.  However, it recognizes that "puffing" or "posturing" in a negotiation is acceptable -- even if less than forthcoming -- provided no material facts are misrepresented.  For example, it states that a prosecutor cannot claim that there is an eyewitness to a crime to encourage a plea, when no such witness exists.  However, a prosecutor seeking to obtain cooperation from a witness is not obligated to disclose at the outset of discussions that he or she is willing to grant immunity.

Opinion 06-439 concludes that, in the context of mediation, "statements regarding a party's negotiating goals or its willingness to compromise, as well as statements that can fairly be characterized as negotiation 'puffing' are ordinarily not considered 'false statements of material fact' within the meaning of the Model Rules." 

The Duty to Speak Up

The duty to not make false statements of material facts sometimes includes an affirmative duty of disclosure.  Opinion No. 06-439 references an earlier opinion, Formal Opinion 95-397, which concluded that an attorney involved in settlement negotiations for a personal injury lawsuit could not conceal the fact that the client had died. Obviously, death, which terminates pain and suffering as well as future medical expenses, is a highly material fact in settlement of an injury claim.

Similarly, if an attorney has asserted a loss of consortium claim for an injured party's spouse but discovers just before mediation that the parties were not married until after the accident, there would be an affirmative obligation to correct facts.  Likewise, a defense attorney cannot affirmative represent that there is $100,000 in available insurance after discovering a $1 million umbrella policy providing additional coverage for the claim.

In short, it is not enough to remain silent when silence itself would create or perpetuate a misrepresentation of facts that the other side would deem material to the negotiation.

Practical Approaches

One useful way to identify the ethical dividing line is to focus on facts versus opinions:

  • You cannot represent that your client is restricted to a wheelchair following an auto accident when you have seen your client walk into your office.  However, you can still offer an opinion that your client's injuries are very serious and have had great impact on your client, and that the case will have great jury appeal. 

  • You cannot claim that your business client is insolvent and can't afford a settlement when you just handled a successful IPO that eliminates the client's financial worries.  However, you can still argue that a demand is exorbitant and that there is no way this case is going to resolve if that is what the other side is looking for.

Conclusion

A certain measure of hyperbole is an expected part of any negotiation and can occur without crossing the line into dishonesty and ethical peril.  However, just because a lawyer may ethically engage in some level of "puffing" does not mean that a lawyer is obligated to push the ethical boundaries as a negotiator.  Ultimately, an attorney's ability to achieve great negotiated outcomes for clients is more connected to personal reputation than a willingness to go right up to the ethical line.

Each attorney needs to find a comfort level with his or her approach to negotiation that protects clients, but also safeguards one’s personal reputation and allows restful sleep at night. As Warren Buffet once said:  "It takes 20 years to build a reputation and five minutes to ruin it."  No negotiation is worth that price.

 

 

Negotiating with "The Man Behind the Curtain": Dealing with the Missing Insurance Adjuster

The beauty of mediation is that it brings decision makers together in the same space and time, to resolve disputes.  The success of the process rests on the fundamental assumption that each party comes to the table with the authority to settle. Unfortunately, in some cases involving insurance companies, key decision makers sometimes are absent, creating challenges for counsel, participants and the mediator. 

The Absent Adjuster Problem

Certain insurance carriers view their participation in mediation as an elective process where they can simply make an adjuster available by telephone and avoid the time and expense of traveling to a mediation session.  Putting aside the threshold question whether telephonic participation satisfies court rules for alternative dispute resolution, the message this communicates is dismissive:  the missing adjuster appears too important to attend and the interests of the injured claimant, who does attend, are less important. This is not the best way to start a negotiation.

The telephone can also become the curtain that insulates a decision maker from personal engagement in the negotiation process. We all remember the scene from The Wizard of Oz where Toto pulls back the curtain and we discover that the commanding voice of authority is just a little man at the controls, who then is forced to actually talk in person to Dorothy.

https://www.youtube.com/watch?v=YWyCCJ6B2WE

Telephonic participation curtains off the adjuster, preventing the type of personal interaction with the mediator, opposing counsel and the injured claimant that often helps resolve cases.  Experience shows that it is much easier to say "no" when the communication is remote rather than face-to-face.

Certain insurance carriers refuse to send an adjuster to a mediation -- citing expense and time constraints -- but, if a case goes to trial, will require that same adjuster to sit in the back of the courtroom for the entire proceeding.  This also sends an unfortunate message about priorities.

Strategies for Defense Counsel

A defense attorney faced with an upcoming mediation and the prospect of a missing adjuster needs to work proactively to keep this from torpedoing the mediation process:  

  • Determine if the absence of the adjuster is necessary and for a good reason.

  • Consider rescheduling the mediation to accommodate the adjuster's schedule and travel plans.

  • If the adjuster absolutely cannot attend, get consent well in advance from opposing counsel and, if necessary under applicable rules, from the court.

  • Use technology to bridge the gap, with video participation if possible.

  • Be sure to include the adjuster in the full joint session, especially any presentation by counsel for the plaintiff.

  • Arrange in advance for redundant methods of reaching the adjuster throughout the mediation process, including personal cell phone, text and e-mail. Calls to the adjuster during the negotiations should not be going into voicemail.

  • Make clear to the adjuster that disappearing for lunch or meetings during the mediation is not an option.

  • Apologize in the joint session and explain the reasons for lack of personal attendance to the opposite party. It is one thing to state peremptorily that "my adjuster will be available by phone." It is quite another to explain that the adjuster on this claim wanted to attend in person but is recovering from surgery and did not want to delay the mediation until his or her return to work.

Strategies for Plaintiff's Counsel

Plaintiff's counsel, faced with a request for telephonic participation by an adjuster, also has work to do:

  • Consider whether to accept or reject the request for remote participation.

  • Decide whether it is better to have remote participation by an adjuster who knows the case than a "stand in" independent adjuster who is simply a warm body with no authority.

  • Consider the pros and cons of asking the court to require personal attendance.

  • Educate your client before the mediation about remote participation so there is no surprise at the mediation.

  • Insist on video participation with the adjuster through the entire joint session.

  • If your presentation at the joint session includes any exhibits or visual components, figure out in advance how these can be shared electronically with the missing adjuster.

  • Confirm with defense counsel that they have made the necessary arrangements to reach the adjuster continuously through the entire mediation process.

Get Behind the Curtain

In the experience of most mediators, personal attendance of decision makers increases the likelihood of resolution.  When that does not seem possible, however, even small dogs can find ways around imposing curtains.

 

 

Using Interest-Focused Negotiation to Settle Cases


Even those negotiators who have not found time to read Roger Fisher and William Ury’s seminal work, Getting to Yes, are probably familiar with one of its core points: turn the focus from positions to underlying interests.  How exactly to do this, particularly where the parties have staked out aggressive conflicting positions in advance, is not quite so easy.

Let’s take a recurring problem we see regularly in northern New England:  neighbors fighting over a boundary line.   One side believes that the other has trespassed across a surveyed property line, invading his or her land.  The other, pointing to historic use for decades, claims ownership through adverse possession.  The first neighbor puts up a fence.  The second neighbor tears it down.  Words are exchanged, further retaliation occurs, police are called, tensions escalate and each side lawyers up.  

By the time the dispute gets into court, these neighbors are sworn enemies who don’t even want to be in the same room for the mediation session.

When I meet in private caucus as mediator, I hear surprisingly similar points from each side:  (1) I am right and the other side is wrong; (2) we are going to win this case in court; (3) my neighbor is a horrible person who has done terrible things without any justification; (4) my neighbor is dangerous; and (5) I am worried about my family, living next door to this person.   Each side expresses serious doubt that this case can be resolved short of trial.

In trying to resolve these cases, I first let each side tell their story fully, recognizing the need for each side to be heard.  I then work on reframing the problem temporally by focusing on the past, the present and the future.  Everything that has happened up to the day of the mediation is in the past – it cannot be changed or undone.  This mediation is a present opportunity to seize control and thereby change the relationship of the parties in the future.  And it is here that there is an easy pivot into interest-based negotiation.

Despite their strong differences, these neighbors actually share significant common interests going forward:

•    Ending this escalating dispute which is making their lives miserable.

•    Living in peace.

•    Protecting the safety of their families.

•    Stopping legal expense.

•    Knowing that their property line will be respected by the other neighbor.

•    Not spending time in litigation, with a possible ending that might not be favorable.

•    Controlling the outcome.

If the neighbors reside next door to each other, these interests are all wrapped up in the fundamental concept of “home.”  We all want our homes to be safe, secure and a place of refuge.  Disputes with neighbors attack that common interest.

We discuss the fact that if the case goes to trial, there will be a winner and there will be a loser.  Court decisions on boundary disputes, in particular, tend to be black and white.  One neighbor may win the legal claims but the other will walk out of that courthouse feeling aggrieved and very unhappy.  Does the winner want that aggrieved and unhappy person living next door?

Unlike a court ruling, the mediation process allows the neighbors to find peace with each other and move on.  There are a host of creative, interest-based options to resolve these disputes:

•    One neighbor pays the other cash for a quitclaim deed to the disputed area.

•    One neighbor pays the other cash for an easement over the disputed area.

•    The neighbors swap land so one ends up with the disputed area in exchange for another parcel.

•    The neighbors agree on a new compromise boundary line and split the cost of a surveyor and boundary line adjustment.

•    One neighbor foregoes any claim to the disputed area in exchange for the other neighbor assuming the cost of putting up a fence along the common boundary.

Sometimes it becomes clear in the mediation that the interests of the parties are best served by just ending the relationship.  In those instances, we may discuss a purchase and sale agreement and negotiate a price by which one neighbor buys out the other.

The point here is that the strongly conflicting positions of the parties walking into the negotiation will often mask strong common interests that may provide the basis for complete resolution.  Disputes between neighbors are only one example of how separation of positions and interests can open doors to resolution.  By reframing past-focused positions into future-focused interests, a broad range of seemingly “impossible” disputes can be ended with truly lasting solutions.

 

When Mediation Goes on the Rocks: Strategies for Turning Failure into Success


The mediation had an inauspicious beginning:   The parties spent the first 15 minutes debating who should move first. The Plaintiff finally dropped from a pre-mediation demand of $200,000 to $197,500.  Calling this a nonstarter and insulting, Defendant responded with an initial offer of $2,500.  The Plaintiff countered by refusing to move further until there was a “real offer” on the table.  The Defendant responded by refusing to bid against itself and threatened to leave the mediation.  Before any serious negotiation had occurred, the mediation was already at an impasse.

Introduction

Mediation, like any form of negotiation, involves messaging.  Each change in position communicated to the other side is a message delivered between opposing factions.  Mediation can quickly devolve into a reactive process where messaging and counter-messaging can become the focus, leading to impasse instead of resolution.

There are many strategies that counsel can use to help get a stalled mediation back on track.  Here are a few:

Be Patient

Senator George Mitchell has described the negotiation process that led to the historic peace accord in Northern Ireland as “700 days of failure and one day of success.”   Prepare your client ahead of the mediation for the likelihood of rough spots and the need for patience while the mediation process unfolds.  If counsel projects patience and confidence in the process, clients (who often are first-time participants) will remain patient and hopeful.  Patience is what allows difficult cases to settle.

Avoid Reactive Negotiation

Reactive negotiation -- determining what ground to give solely based on the preceding move of the opposing party -- allows the other side to dictate your own decisions and settlement progress.  Small moves seldom beget large moves, and a sequence of incrementally smaller moves can quickly grind a mediation to a halt.  While it may be satisfying to respond to a bad move with a worse one, usually it will prove more productive to think about the next several moves and whether they will get the case closer to settlement.  Don’t cede control by allowing the other party to dictate your moves.

Don't Ride the Brakes   

Surprising results occur when one party departs from reactive negotiation and instead makes a bold move that sets the negotiation off in a new direction.  Feared by some as a show of weakness, a bold unilateral move by one side may prove to be the turning point that heads a mediation toward settlement.  New drivers are taught to not “ride the brakes.”  The same rule applies in negotiations.

Use Negotiating Tools

Brackets are a form of conditional offer – “we will agree to move to X if you agree to move to Y in response.” While bracketing is not appropriate for every case, it can provide a way around an impasse by signaling what might be possible on each side.   When parties exchange counter brackets the area of dispute narrows and the path to resolution may become clearer.

Another tool is doubling up moves.  If the parties are moving at consistent paces, can some moves be doubled to save time – each party agreeing to move twice to help close a gap?

If the parties have reached the end of a mediation without closure, rather than taking a final offer off the table, consider leaving it open for a week to invite further consideration or further negotiation.  The end of the mediation session does not have to mean the end of discussion and mediators often welcome the chance to get the case resolved, post-mediation.

Consider Creative Approaches

A typical personal injury mediation is a distributive or zero sum negotiation: “One man gathers what another man spills.”  (Grateful Dead, “St. Stephen”).  Nevertheless, there still may be opportunities to create value for one side without additional cost to the other side.  Can an insurance carrier expedite payment to help resolve financial issues for a claimant?  Can the carrier cut separate checks to counsel and the claimant to help get money where it is needed?  If a party is having difficultly coming up with funds personally, is there a role for a consent judgment coupled with a payment plan?  Is there a role for a consent judgment coupled with an agreed discount for early payment? Would an apology make a difference?  How about a donation to charity in lieu of a cash payment?   

Reframe the Dispute

We tend to walk into mediations with a predetermined definition of the problem.  This necessarily limits the range of perceived solutions.  I have seen situations where neighbors entered a mediation thinking they were negotiating a boundary dispute and ended up walking out at the end of the day with a signed purchase and sale agreement allowing one to buy out the other entirely.   In this situation, the boundary issue was a symptom of a more fundamental problem – these folks simply could not live next door to each other and get along.  Once the negotiation was reframed to focus on finding a solution that would eliminate all future interactions, the neighbors suddenly had a convergent interest in working together to hammer out a purchase and sale agreement.

Don’t Assume You Know What You Don’t Know

It is easy to make assumptions about the other side’s “true” position or bottom line based on the moves made during a mediation or other messaging that accompanies those moves.  Sometimes those assumptions are completely wrong.  I recall one situation where both parties had serious medical conditions that were driving their decision-making, yet neither was aware that the other was facing the identical issue.  The case resolved without either suspecting this was the case.  Only afterward did the parties share this bond that separately drove a settlement.

A party in a mediation may be facing financial issues, relationship issues, health issues or other personal circumstances that may make the seemingly impossible feasible.

Listen

Parties end up at mediation because of seemingly irreconcilable viewpoints:  “Two men say they’re Jesus one of them must be wrong.”  (Dire Straits, Industrial Disease).  Solutions come from information.  A good negotiator will do more listening than talking, sifting every word from the opposing counsel, the opposing party and even the mediator for clues as to underlying interests and openings for resolution. As George Mitchell aptly put it in The Negotiator, “the only certainty I have is that I have learned little while I was talking.” 

Ask the Mediator for Suggestions

If, despite hard work on both sides, the parties reach an insurmountable impasse, consider asking the mediator for suggestions.  There are times when a mediator can provide an insight or perspective that moves the negotiation forward.  Some mediators will agree to circulate a “mediator’s proposal” to settle the case – a number that is difficult for both sides but potentially within reach.  Some mediators will work on a double-blind basis so parties can stretch privately to a settlement without publicly sharing that position with the other side.  In a true double-blind, the mediator will not disclose an offer to the other side unless it will, in fact, settle the case.  That confidentiality allows both sides protection and can sometimes make the difference between failure and success.  
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A few hours later, the case settled for $60,000.  Plaintiff stretched below an original bottom line of $75,000 and Defendant went above its target of $50,000.  All parties walked out professing significant disappointment – but sharing a quiet sense of relief.  

 

10 Mediation Mistakes

 


While good mediators can work around almost any obstacle, there are a number of ways that counsel can unknowingly impede the mediation process.  Here are ten mistakes to avoid:

1.     Showing up without decision makers.

To maximize the chances for resolution bring decision makers to the mediation.  If a client will not make a decision without his or her spouse, make sure that spouse attends.  If someone has to attend by telephone, have back-up phone numbers and emphasize that you will need the ability to connect.

2.     Failing to discuss settlement with your client beforehand.

The start of the mediation session is not the time to have that first hard discussion with your client about case value.  Set appropriate expectations in advance.

3.    Moving in the wrong direction.

If you have made a demand or offer before the mediation, don’t move backwards from it at mediation.  In the exceptional situation where new information changes the case value, don’t wait until the start of the mediation to announce this.

4.     Springing new information on the other side.

Particularly where you are dealing with an insurance company on the other side, understand and work with the reserving process.   Putting new damages or new specials on the table at the mediation accomplishes little.  

5.     Withholding information that could help settle the case.

Recognize that the vast majority of cases will settle without trial.  Don’t save the “good stuff” for a trial that is unlikely to occur when it could assist in obtaining a better negotiated result for your client at mediation.

6.      Personally attacking the opposing party and counsel.

If you are trying to negotiate a good outcome for your client, rely on persuasion not on personal attacks.  

7.      Refusing to move.  

The negotiation process stalls out quickly when one side refuses to move, or insists on a “better” move by the other side before putting forth another offer.  Respect the role of reciprocity and keep moving.

8.    Ignoring liens and third-party interests.

The mediation session is not the place to start making calls to lienholders.  Make contact well before the mediation, negotiate what you can and have a good way to reach decision makers.  Consider inviting large lienholders to the mediation.  If Medicare is involved secure a recent conditional payment letter.

9.     Failing to prepare.

Mediation can be the most important event in the life of a lawsuit.  Know your file, and show up prepared with a negotiation strategy.

10.    Giving up early.

Difficult cases can and do settle at mediation.  A big negotiating divide or even an impasse does not mean a case cannot settle.  Giving up early does not help.  Be patient, work with the mediator and let the process unfold.  

 

When Mediation Becomes a Client's Day in Court


 

Not long ago, alternative dispute resolution was one of the many stopping points on the path to trial: it was something you checked off the list as you prepared a case for a presentation in a courtroom. Increasingly, though, ADR has become the last step in the life of a lawsuit -- the ending place where litigation is concluded. The waypoint has become the destination.

ALLOW YOUR CLIENT TO SPEAK

The emergence of ADR, and specifically mediation, as the process by which most cases will end, requires fresh thinking about the client’s role in a mediation and how counsel will approach this process. With few clients ever seeing the inside of a courtroom, let alone getting to tell their story to a judge or jury, there is a corresponding need for clients to have a speaking role within the mediation process. In reaching a resolution, each client wants to feel that his or her story has been told and considered, and that it counted.

It is easy to forget that a client’s perception of fairness, and sense that mediation, has produced a just outcome often is not tied to a dollar amount -- the value system that the legal system superimposes on the nuanced personal problems that find their way into suit. The perception of fairness draws as much from the process as from the ultimate result: clients’ beliefs that mediation allowed their voice to be heard and their sense that their position was effectively advocated.

I sometimes run into counsel who are reluctant to allow clients to talk in a joint session and then immediately try to interpose themselves as a protective buffer between mediator and clients in private caucuses. The attorney becomes the filter for any communication with the mediator, boxing the client out of any meaningful role in the process; let alone allowing the chance to talk about what is personally important.

A skillful mediator will work around the filter and find ways to start a dialogue directly with the client. Skillful counsel will invite a direct conversation between the mediator and the client in private session, and may encourage the client to have a speaking role in the joint session.

Open conversations between mediator and client have value on a number of levels. They allow a relationship of trust to develop that may be critical to resolving a case when negotiations get difficult. These conversations are also informational and may provide the basis for creative approaches to resolution that are not immediately apparent from the claims in the lawsuit. They may result in new information that can be significant in working toward resolution. If counsel insists on talking for their clients, relegating clients to non-speaking roles, these conversations cannot take place.

DO NOT WAIVE YOUR “OPENING STATEMENT

While there is a risk when counsel talks too much when they should sit back, there is also a risk when counsel does too little and fails to advocate for the client in the joint session. How often do we hear this statement? -- “We have set out our position thoroughly in our mediation summary, and I don’t have anything else to add.”

From the perspective of a client looking to counsel to advocate his or her case, this is akin to an attorney waiving opening statement at trial and not calling any witnesses. While exhaustive presentations by counsel in joint sessions are seldom useful, most clients want counsel to advocate their position so it will been heard by the mediator and the opposing side.

There are limited cases where counsel will jointly agree to waive a joint session and refrain from opening presentations to avoid further upsetting parties who cannot be together in the same room. Those situations should be the exception.

STAY PROFESSIONAL

Another problem that occurs infrequently in northern New England, but can have a profoundly negative impact on the mediation process, is when counsel decides that the mediation process is the opportunity to prove his or her worth by demeaning and insulting the opponent and the opponent’s attorney. The level of professionalism expected in a courtroom should be counsel’s baseline at mediation.

Experienced counsel knows how to make effective points while maintaining an atmosphere of respect. Successful mediation is ultimately a facilitated negotiation process, and offensive behavior is an odd strategy if settlement is the goal.

COME PREPARED

If mediation is the new paradigm for case resolution, the level of preparation prior to mediation has to increase. It does not help to go into mediation having never discussed settlement ranges with one’s client. It does not help in a multi-defendant case if defendants have not discussed allocation or levels of participation beforehand.

 It does not help if lien amounts are unknown, lienholders have never been contacted, and there is no way to reach them at the mediation. It also does not help if significant new medical bills, or other new evidence of damages, are handed to the other side for the first time at mediation session.

ENCOURAGE PERSONAL ATTENDANCE

A recurring problem in personal injury mediations is insurance carrier participation. While the logistics of having an out-of-state claim representative appear in person are sometimes daunting, it sends the wrong message if plaintiff shows up in person to the mediation only to find out for the first time the other side will not be present and is “available by phone.”

If a claims person is not going to attend in person, make sure this is known and agreed to by opposing counsel in advance. Consider arrangements to join that representative in the joint session by Skype, WebEx, or phone. Make sure you have a cell number to reach the representative during the entire mediation session so remote access will be easy.

On the defense side, an insurance representative would be less than happy to show up in person to a mediation only to find that plaintiff is not attending but will be available by phone “as needed.” Personal attendance by decisionmakers on both sides not only communicates respect and commitment to the mediation process, but it improves prospects for a successful resolution.

MOVE FORWARD NOT BACKWARDS

Negotiation strategies in the course of a mediation are different from attorney to attorney and from case to case. One strategy that accomplishes little -- except immediately starting the mediation off on the wrong foot -- is moving backwards from a pre-mediation settlement position by taking an offer off the table, or starting out with a higher demand (or lower offer) than was in play pre-mediation.

While inexperienced counsel may think this type of negotiating shows “toughness” to a client, it can create very unrealistic client expectations and usually backfires. This type of gamesmanship can quickly make the dispute personal and distracts attention from the more meaningful issues of case valuation and risk.

CONCLUSION

With mediation displacing trial as the forum in which we resolve most disputes, we need to rethink what this means for clients and their role in the litigation process. As counsel, we also need to rethink what we are trying to accomplish and how we can be most effective if mediation is the practical ending point for most cases.

This transition is happening. The most effective mediation counsel, like the most effective trial counsel in years past, will be fully prepared for these unique challenges and opportunities.

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Reprinted with permission of Maine Lawyers Review.  An earlier version of this article appeared in the 10/19/16 issue of New Hampshire Bar News.