Prepping For Mediation: Practice Tips for Young Litigators

By O. Craig Tierney Jr.

Editor’s note: This article appeared originally in The Advocate, the newsletter of the NCBA’s Young Lawyers Division.

When The Advocate asked me to write an article about helpful tips for having an effective mediation, I took some time to reflect on how my personal preparation and tactics for mediation have changed over the last 20-some years. Civil litigation/mediation slowly but surely morphed from a passive “Well, let’s show up and see if we can settle at mediation” attitude, to an active “What do we need to do prior to mediation to secure a favorable settlement?”

Fundamentally, your client cares little about litigation drama. Your client cares about getting a good result that is cost effective and timely. Mediation can deliver all of that in spades. But, like almost anything in life, getting there takes some work and prior planning. Several hours of careful thought, strategy and planning about 60 days prior to a mediation will greatly increase the chances of having a successful mediation.

Know your facts.  Going into mediation you should know the facts of the case backwards and forwards. You want to be the person in the mediation that has control of the facts and can smoothly respond to fact questions asked by the mediator. Typically, I prepare a single sheet of paper with a time line of important events, party names and witness names as an easy reference. Have copies of important documents, medical records and transcript testimony available to support your opening statement. It’s one thing to say it; it’s another thing to show it.

Managing Liability Expectations.  After the pleadings are closed and the first set of written discovery has been exchanged, it’s a good time to talk with your client about expectations.  Talk to your client about the uncertainty of jury trials and how different jurors may interpret the same facts differently.  Also, share your opinion about how the opposing side will use the same facts to bolster their view of the case.  Don’t assume your client remembers your sage advice and liability evaluation from six months ago when the Complaint/Answer was filed.  Spoon-feed them again prior to mediation with your pros and cons on liability and the risks of leaving that decision in the hands of 12 unknown jurors.

Managing Value Expectations. Similarly, spend time in advance of mediation talking to your client about value expectations. In the majority of claims headed to mediation, there is a “ballpark” for a reasonable negotiation. Rarely do I go into a mediation without having first “spit-balled” value ranges with several lawyers that I know and trust. Talk to plaintiff’s lawyers and defense lawyers to get a broad base of feedback. Why waste time making a demand for the moon and the stars and then spend an hour just getting into the Earth’s atmosphere? Same thing for defendants. If a plaintiff makes a demand within the “ballpark,” why come back with a low ball?  Take time with your client in advance of mediation to explain that nobody can force them to take a penny less, or pay a penny more, at the end of the day than they agree to regardless of starting points.  If your client appreciates that they control the end game, then they are less likely to push back on your advice to start with a demand that is in the ballpark.

Also, be aware of prior negotiation history. Nothing chills a mediation like a demand/offer that is significantly different from the last settlement number. If you go backwards, the other side will respond in kind.  This is not a great way to start a mediation.

Conflict or Cool and Calm.  Well, the conflict is certainly covered.  You are in a lawsuit and everyone is lawyered up.  But mediation is not the place to fan the flames of conflict. Effective lawyers at mediation are calm, cool and collected. Badgering and finger pointing is counterproductive.  Certainly, you want to press your points, but consider directing the more contentious facts of the case to the mediator.  Use the mediator as a safe harbor to expose the lightening rod facts of the case.  By addressing contentious facts to the mediator instead of to the defendant’s face, you have used a safe harbor to diffuse emotions, rather than throwing gasoline on the fire.

At mediation, the lawyer has a unique opportunity that is unavailable at any other stage in litigation. You have the floor. No judge, no jury, no objections, no rules of evidence or procedure.  In the opening session you can, without interruption, lay out your best case and persuade the opposing party that your view of the case has merit.  Before mediation, the opposing party has never had an advocate like you look them in the eye and calmly explain to them why they face a significant risk of an unfavorable outcome.  Take advantage of this opportunity.  I like to address my opening statement directly to the opposing party including my view of how the facts, law and value will play out at trial.

Authority. Going into mediation, you and your client should have discussed reasonable settlement ranges and I advise against locking into a predetermined number for a settlement floor/ceiling.  Mediation is all about keeping an open mind, listening for new facts and making value adjustments where warranted.  Hopefully the parties come to mediation with informed value expectations.  Neither side is likely to substantially deviate from their informed value expectations. Therefore, if you have information that you want to use to lower the value expectation of the opponent, then do not wait until the day of mediation to disclose it. Think ahead and provide that information to the other side well in advance of mediation.

An insurance company typically requires a very thorough pre-mediation report 30 to 60 days prior to a mediation. That report includes evaluations of liability, damages, a proposed settlement range, and some type of “best day/worst day” for trial verdicts.  As a defense lawyer, you should make sure you have scheduled discovery well in advance of the mediation report deadlines to properly prepare the claim representative’s expectations for not only the good stuff, but the bad stuff learned through discovery.  Claim representatives loath late information that requires them to send a second report or to make a phone call to their managers for more authority.

Similarly, for both the defense and the plaintiff sides, do not fall into the trap of sugar-coating the case facts to your client and overestimating your chances of a favorable verdict at trial.  The facts are the facts and you can’t change them.  Tell your client the good, the bad and the ugly prior to mediation.

For the plaintiff lawyer, be aware that a 30- to 60-day advanced pre-mediation report is being sent to the carrier in your case and act accordingly.  This report triggers the authority that will be available at the mediation.  A plaintiff’s lawyer should be proactive and pick up the phone and call the defense lawyer to ask, “Is there anything else you or your client need in preparation for mediation? Depositions, discovery, medical bills, lien information, PPD rating letter, letter on future surgery?”

Medical bills, Rule 414 and liens.  Don’t assume that your adversary has all the information for medical bills, liens, setoffs, credits etc.  At least 30 days prior to a mediation, I call the other attorney and ask for updated information on all bills and liens.  If there is a dispute on the Rule 414 “bills paid” number then clarify the difference well before mediation.  Is the Workers’ Comp carrier on notice of the mediation?  Is Medicare in the loop?  Is the case a UIM arbitration?  Does Rule 414 even apply to a UIM arbitration?  Always try and narrow down the scope of the mediation before the mediation.  If your mediation turns into a 3-hour discovery tour, then your client is not being served.

Dr. Doolittle, Mr. Wonderful and the back pocket.  If you want to get the best possible settlement at mediation, you may have to open up your bag of facts and voluntarily disclose some of the good bits before mediation.  Holding back the good bits before mediation and springing the trap at mediation may feed your inner Hollywood, but it does little to effectuate settlement at mediation. Parties, their lawyers and carriers need time to digest and evaluate adverse information.

If the plaintiff shows up to mediation with a letter from Dr. Doolittle that relates an ulnar nerve problem to the accident with a $12,500 future surgery, then a claim representative is going to roll his eyes and look for an exit.

The “undisclosed expert” is also a dead letter at mediation. Suppose the defense counsel shows up to mediation and proclaims in the opening statement that she has “hired the best accident reconstructionist in the state and Mr. Wonderful will testify . . .” Well, the mediation is now a wounded duck. Why should the plaintiff give any weight to Mr. Wonderful?  How can a mediator find anything useful from a lawyer’s statements about an undisclosed expert?

Often times, certain bits of information are revealed to the mediator in a closed session by one party and the mediator is told to “keep this in your back pocket.”  It’s usually something like, “We have a recorded statement from an ex-girlfriend and she says . . .” Like the undisclosed expert, “back pocket facts” are pretty useless for a mediator.  If you have good facts and want the case to resolve, then disclose them at mediation and let the mediator do his or her job using those facts.

The mediator is a sounding board.  A good mediator is always open to talk with you about strategies for negotiation.  After the first couple of breakout sessions, the mediator will have a “feel” for the other room.  Ask the mediator who the decision-maker is in the other room.  You may want to speak to the mediator privately and ask for help in your room because your client is as crazy as a loon or as stubborn as a mule. Often times, meetings with just the lawyers and the mediator are helpful to work through bumps in the road at a mediation.

Remember, you and your client do not have to take one penny less or pay one penny more that you want.  You are free to stop anytime.  Don’t let the other party dictate how you negotiate.  Go in with a plan and stick with it.

Bring a draft Release. Try and avoid a post-mediation mediation over the settlement documents.  There is plenty of downtime in a mediation. Consider drafting a settlement agreement while you attend mediation.  If you are getting to the short rows at mediation, give the draft to the mediator with your next offer.  The other party can review it and tweak it during their downtime.  Who wants to spend 45 minutes after a long mediation dickering over the language of a Release?

Dry-run for AV presentations.  You want your presentation to run smoothly and to make the best impact.  Technology glitches are annoying in mediation and lessen the impact of your presentation.  Call ahead to the mediation location and make sure all of the equipment you need is available.  Get to the mediation early so you can do a dry-run with the AV presentation.  Finally, do not overkill the AV presentation.  Keep it direct and to the point.  Do not use 10 photographs to illustrate a point when 1 or 2 photographs is sufficient.  Put your presentation and photographs on a thumb drive so that, during a breakout session, the other side can take time to review it if they like.

If you plan ahead, know your facts, manage expectations and stick to your plan, then you will have a successful mediation.  Good luck and have fun.

Craig Tierney, Jr. is a NCDRC certified mediator and an attorney with Brown, Crump, Vanore & Tierney, LLP in Raleigh. He can be reached at [email protected] or 919-890-4482.