Published: December 2019
By: Mark Greenberg
We have all done it. At a hearing, we are about to win the argument but keep talking. The next thing we know, the judge has changed her mind and ruled against us. After a few “learning” experiences, we remember to stop talking when the judge seems convinced, and thus avoid snatching defeat from the jaws of victory.
The same process happens at mediation. Sometimes a case should settle, but does not for a variety of preventable reasons. Here are some experiences to help you avoid impasse when you could settle your case.
- Timing. People tend to put off hard decisions until the last minute. A plaintiff who must sacrifice more than they want, or a defendant who has to pay a large amount, will want to wait until the end or close to the end to make those difficult decisions. Conversely, mediating too late can occur when attorney’s fees have taken over the case so that settling the main issue results in a huge exposure to fees. For the practitioner, think about when you want to mediate the case from both your perspective and the other side’s. As both an attorney and mediator I have seen too many cases impasse because mediation was held either too early or too late. While there is never a downside to mediating a case, not paying attention to timing can set it up for failure.
- Big or dispositive issues are unresolved. If there is even a perceived 10 percent chance of success on summary judgment, it may be too early to mediate the case. This relates to timing, above, but can be a separate factor. There are times when once summary judgment or the big issue is briefed, that the other side will begin to perceive risk, making the case amenable to mediation. Other times, the court needs to deny summary judgment before the parties can productively mediate, which often occurs with insurance coverage and product liability matters. Accordingly, it is wise to brief such issues as soon as possible so that the case can be resolved without unnecessary expenditure of time, money, and emotion.
- The unrealistic client. Some clients simply think they “cannot lose”. In my experience, these people often crack at the last minute, and then settle the case. So, part of this is timing, but part of it is also preparing your client with the risks and potential downfalls of the case. No lawsuit comes with a guaranteed result, as we all know. The sooner your client understands that, the easier it will be to settle at mediation. Likewise, if you have a hardnosed client, let the mediator know in advance. This helps the mediator prepare and start working early with your client. Often, mediation is a process of determining who or what is the holdout, and then pushing on that issue or person to achieve settlement.
- Picking the wrong mediator. Personalities are important. Even with large corporations, individuals are involved in the case and their personalities, needs, and quirks are important in selecting the mediator. Some people want to settle their case but need to feel they are heard before making that decision. Other people need a more clinical statement, and a mediator who will bluntly ask them questions and push aggressively. Still other people need to feel there was a significant give and take involved so that they are getting the “best” deal possible. People with different ethnic backgrounds may feel more comfortable with a mediator of a similar background. In short, select a mediator whom you believe will work best with either your client, or the other side, to maximize the chance of success at mediation.
- Not knowing your case. This is hard to discuss, but unfortunately some attorneys come to mediation not knowing their case. What is your case about? What are its strengths? Its weaknesses? How well do the parties testify? Few things influence a jury more than the credibility and likability of the parties. The witness who can tell their story well, is better than one who has the same “case”, but you have to pull teeth to get them to discuss it. Factor this in and think about what are the range of realistic verdicts in your mind? What does the jury verdict research show you? Then discount your analysis by at least 20 percent, and tell your client.
You can expect to feel the impact of these five dynamics during mediation. The difference in your outcome will depend on strategic timing, uncovering dispositive facts and legal issues, choosing the right mediator, and preparing your client and yourself for all possible scenarios. In my experiences, I have found that the more cognizant I am of these dynamics, the better prepared I am to snatch victory from the jaws of defeat.
Mark Greenberg is owner of Breakthrough Mediation. He has tried over 100 cases to verdict, while representing both Plaintiffs and Defendants. He now mediates cases throughout Florida, helping people find peace in the resolution of contentious disputes. You can reach him at Success@btmediation.com or learn more at www.btmediation.com