A Mediator’s Message to Defense Counsel Planning for Zoom Mediation

Lawyers who regularly represent defendants know that clients or carriers are using settlement rates and aggregate legal spend, not trial results, as the metric for selecting counsel. With trial occurring in approximately 1% of filed cases, excellence in mediation advocacy plays an important role in client retention. Here are some suggestions for strengthening client relationships through effective mediation advocacy.

1. Clients do not want to pay for bickering over procedural issues and discovery during the litigation. Call the Plaintiff’s attorney at the outset of the case, particularly if you do not know them. If they are local go to lunch. This will help you in many ways. You want to build equity in the relationship because you are invariably going to need an extension, or some concession related to discovery. You are going to mortgage that earned equity at mediation. Taking opposing counsel to lunch is a good move because hardly anyone does it. If you want a good interpersonal working relationship you need to start early.
2. Set mediation relatively early, perhaps 3-4 months from receipt of the file and then work up to the mediation to get the information you need to evaluate the claim. Do not wait until every last discovery response is received before scheduling mediation. You can set the date early and then get the information along the way. Any carrier or self-insured appreciates a lawyer who is pushing for resolution. There is nothing wrong with a second mediation down the road.

3. Endeavor to overcome the impediments to conducting mediation. If a co-defendant will not agree to mediate until the eve of trial, tell the client what you are doing to change that stance. Solicit the Plaintiff’s help in getting the case to mediation. Your effort to move toward settlement scores you points with opposing counsel, while the recalcitrant co-defendant invokes the Plaintiff’s ire. Again, you are building equity in the relationship with opposing counsel.

4. Share the mediation statement with the Plaintiff. If there is confidential material you wish to share with the mediator alone that can be sent in a separate communication to the mediator. The letter to opposing counsel is your one chance to speak or write in an unfiltered way directly to the claimant in anticipation of mediation. Set a positive and optimistic tone, demonstrate empathy, or personalize the defendant/client. Claimant’s counsel wants your premediation submittal because it helps with managing the claimant’s expectations. Write in a way the claimant can understand.

5. Do not dispense with opening session. Be affable and cordial. Some lawyers fail to appreciate that you get more flies with honey than vinegar. If the other side is objecting to a joint session, ask why and try to ameliorate those concerns. Keep it short and impactful. Opening statements may be your one and only opportunity to communicate directly with the claimant and to educate them on a couple of problems in their case. Keep it short and limit your discussion to three main points.

6. Do not willingly give up the opening session unless the case involves claims such as sexual harassment or emotionally charged facts where the presence of the defendant in the room would jeopardize the process and cause great aggravation or upset. Mild annoyance is normal and can be tolerated, but emotional meltdowns or anger filled tirades in opening session are to be avoided. If the opening session becomes emotionally heated, politely inform the mediator they you would like to be excused and leave the room. Keep in mind, letting the Plaintiff or their attorney tell their story and vent maybe unpleasant for your client but necessary and ultimately helpful. Warn the client in advance. Sitting through an unpleasant narrative from claimant’s counsel may be what the claimant expects. Claimants want their story told.

7. Don’t call the claimant a liar or malingerer in opening session. If they are one, they know it. Avoiding discussion of the Plaintiff’s dubious injuries or bad behavior is often helpful. Understand any suspect medical treatment, credibility, or character issues will be “priced into” the settlement by Plaintiff’s counsel.

8. Make sure your lighting, camera, and Zoom appearance is top-notch. Bad lighting, strange camera angles, and poor video bespeaks laziness and indifference. Use a professional virtual background if your office setting is less than ideal or if you are working from home. Backlighting is a frequent problem when working from home. There are inexpensive tripod mounted lights that can be purchased for under $100. You should be looking into the camera face-forward when you are speaking as if you were having an in-person  communication.

Zoom mediation has been endorsed by the courts and is here to stay. Smart advocates should create a professional-looking and attractive online Zoom appearance that will engender the respect of the client and others.