Mediation Minute

The 30/30 Piece on Mediation Advocacy

May 10, 2022

When I was a young associate and handling mediations on my own, I really didn’t get it. I mediated too late in the life of the case. I had no relationship with opposing counsel. Mediation advocacy is a lot like sex – for most people you sort of figure it out as you go along.

However, mediation training should rightfully follow a different model. At some point, I began to understand better the underpinnings of mediation and I saw more clearly the holes in my training and preparation.

Here is my “If I Could Do It Over” message to lawyers. I did a lot of defense work, so I come at the problem from that view but most of this applies to any litigator regardless of which side you represent.

  1. Make the plaintiff’s lawyer (or defense lawyer) your friend. As a defendant, you want them to take your money! That’s fundamentally your job. Winning is not really a goal for most clients. Your client wants to make a deal, not try a case. It is easier to make deals with people who like you than despise you. Is hostile or passive-aggressive behavior going to motivate them to settle? Really? I didn’t make a conscious effort to be particularly cordial until I was in my 40s. (Some might say more work to be done.) Being kind takes a few seconds longer than does indifference. Nobody really made “plaintiff relations” a topic of conversation or part of associate education. Do not belittle Plaintiff’s counsel during opening session or bring up an unfavorable ruling that hurt the other side. Being snarky doesn’t make the mediator happy, and prior victories are already priced into the negotiation.
  1. Unless there is a clear strategic objective, do not file motions you should know are likely to lose. Losing is bad on three fronts. First, losing motions are a waste of time and money. Second, you lost in front of a judge who might remember you the next time. Third, because you lost, the Plaintiff’s attorney may view you as less formidable or just stubborn and ignorant, and this sours a relationship because they likely spent contingency fee hours defending a pointless motion. Absent real privilege problems, arguing discovery objections is not smart; striking a deal with opposing counsel on document production almost always makes more sense and engenders good will. Without proper mentoring, too many associates are left to figure it out managing discovery problems on their own. In any relationship and particularly one couched in an adversarial posture, building goodwill is valuable because you can mortgage the equity in the relationship later.
  1. Pay very close attention to co-defendants. Clueless co-defendants hurt your ability to resolve a case and can annoy the plaintiff. You then indirectly suffer from the toxic environment created by others. The lack of communication between defendants in a multi-party case is a common cause of impasse and wholly avoidable. Pick up the phone and chat well in advance of mediation if there are multiple defendants and carriers. Someone is going to disappoint your expectations and better to know that sooner than later and then work the problem. Carrier representatives notoriously fail to communicate with one another prior to mediation. Why isn’t it the norm to have a defense-only conference in advance of mediation? Unexamined habit and custom needs to change.
  1. Make sure your client is engaged in the lawsuit. Clients sometimes have a non-legal but important viewpoint that we can overlook. Lawyers get caught up in relevancy as a legal standard or filter from which they view information, but in mediation legal relevancy is irrelevant to deal making. Spend more time getting to know the client and hearing what they have to say. You might get some insight about your client or the other side that is helpful.
  1. Immediately tell the client when things are going to get more expensive. Bad news stinks, but delayed reporting of bad news is an anathema to client relationships.
  1. Send a position statement to the Plaintiff’s counsel well in advance of mediation so that he or she can use that to educate their client. You need leverage and to help the Plaintiff’s attorney manage his or her client’s expectations. If you have some factual and legal defenses or settlement issues for the Plaintiff to consider, give it to them early enough so they can talk about it with the claimant and digest that information before mediation.
  1. Always be respectful in the presence of the opposing party. Even the most loathsome plaintiff nonetheless expects to be treated well. Malingerers, whiners, liars, and crooks all earnestly believe they are worthy of respect and have an ego. They may be awful or self-deluded in your eyes, but their reality is the one in which you have to make a deal. Plaintiff’s counsel will thank you for a respectful opening statement.
  1. Apologies matter. I rarely offered one when I was a young lawyer, and it shouldn’t come from the lawyer anyway. The apology should come from the client. Many claimants will say the apology is what “they really want” and, yeah, of course, money too. But an earnest apology or pseudo-apology does help. What matters to them should matter to you.
  1. Stop talking when the other side isn’t listening or when someone starts crying during mediation. Offer a tissue. Pay attention to the audience receiving your message. Sometimes your words don’t matter. It’s okay to not give the talk you were planning to give. Sometimes delivering a message through the mediator is a better play. Knowing when to stop talking is important.

I hope you find this to be a useful list. Feel free to share it. This piece took me about 30 minutes to write, but 30 years to learn.