Tactical Mediation: Finding Value in Every Situation

By Matthew Martin
Published March 2017

Mediation is always worth it.  Always. It has become the source of much groaning and eye-rolling in our profession, frequently seen as yet another procedural obstacle.  However, even in the most dire of circumstances, there is always something valuable to be gained.  It is our obligation as lawyers to find it.

The Early Mediation can be tricky.  We have all been there:  preparing for mediation at the very outset of litigation, with little or no discovery.  The client may be upset, and view the process as a waste of time and money.  However, there is value to be had from each perspective.

From the Plaintiff’s side, the opportunity exists to present the facts directly to the Defendant in the most favorable light possible.  At the outset of litigation, the Plaintiff is – by nature of the system – better acquainted with the case than the Defendant.  Documents have been obtained, witnesses interviewed, and experts consulted.  That information resides solely with the Plaintiff, to be deployed at will.  The result, if not immediate resolution, can be to focus the Defendant’s attention, establish credibility, and raise the value of an ultimate settlement at a later date.  In order to achieve these results, the Plaintiff should provide as much information as possible to the Defendant in advance of the mediation by way of records, bills, documents, etc., as opposed to supplying it all “on the day.”  Further, the Plaintiff should be careful to not overreach or overstate their claim.  While they do possess the ability to present the facts in a favorable light, they still must be facts, and the light must be realistic.

From the Defendant’s side, the opportunity exists to see Plaintiff’s “best day,” to further understand their theory of liability, and to challenge parts of the case which may seem Defense-favorable.  The early mediation is Plaintiff’s “open house,” with the best foot forward and the dirt swept under the rug.  However, the Defendant can look around, knock on the walls, and flip the switches to get an early look at potential problems Plaintiff may be trying to downplay.  To obtain the greatest benefit, the Defendant should view the Plaintiff’s presentation and materials critically, but seriously.  The Defendant should take time to presume Plaintiff’s set of facts are true, and look for areas of weakness in Plaintiff’s case.

Likewise, at the 11th hour with both parties having expended untold costs, time, and effort, and with all the cards on the table, the “Late Mediation,” may be the most contentious.  That said, as always, there is value to be found.

From the Plaintiff’s side, late mediation presents an opportunity for a direct, face-to-face discussion with a full-authority representative of the Defendant.  In other words, to sit at the same table with the person who will have to write a check – and explain it – in the event of a Judgment.  For the best chance at cultivating value from a late mediation, the Plaintiff should present a comprehensive written demand to the Defendant, referencing important documents and testimony, including the value of all bills, liens, and other damages, with a copy to the mediator.  However, the demand should be presented well in advance of the mediation, to ensure the Defendant has time to procure the required authority, and the value of the demand should be an accurate reflection of Plaintiff’s “best day” at trial.  Too often, we have all seen a night-before (or even day-of) “fantasy” demand derail settlement discussions and implode mediation.

From the Defense side, value is found in a frank discussion with the Plaintiff directly.  An opportunity exists to explain the negative aspects of their case in a way their own attorney likely has not.  Further, the mediator provides an independent, disinterested sounding board for the facts of the case in total, and a frank discussion will aid in trial preparation.  In order to achieve the greatest benefit, the Defendant should provide a confidential statement to the mediator only, as counterpoint to Plaintiff’s demand.  Defendant’s statement should reference important documents and testimony, and serve as a basis for the points to be made with the Plaintiff directly during opening, and for the duration of the mediation.

Regardless of timing, the most basic value of mediation is the protection of our clients’ 7th Amendment right to jury trial.  As members of the practice, both as trial attorneys and participating mediators, we are inherently connected to this right, and we are stewards of its responsible invocation.  We likewise have responsibilities to our clients, to our opposing party, and to the community at large to endeavor to reach a resolution.






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