Getting to the bottom line at mediation many times depends on how well all
sides have done their work beforehand. In a common A vs. B tort or contract
case, anticipation is present at the beginning of a mediation concerning the
opening numbers for negotiations. This anticipation is heightened when
virtually
no settlement discussions have occurred prior to the mediation. This lack of
dialogue can become complicated if the discovery process has been a virtual
wrestling match. As a result, in order to get to the bottom line and achieve
a settlement at mediation for a common tort or contract case, guidelines can
be followed that will potentially promote resolution of the dispute.
Get Your Work Done Well in Advance
Knowing that a case is going to mediation, the parties should keep in mind
whether or not they will be able to get their discovery done. There is no
reason
to schedule the deposition of a plaintiff or defendant on the day of mediation,
or within close proximity to the mediation date. Equally important, do not
schedule
the independent medical examination within days of the mediation. This type
scheduling will prevent you from having the opportunity to advise your client
of the results of the deposition or examination. This type of scheduling with
the upcoming mediation will only complicate a party’s ability to obtain
the appropriate settlement authority.
When discovery is not obtained in a timely manner, discretion should be used
in filing motions to compel prior to the mediation. The sting of a motion to
compel can carry over into the settlement negotiations and create obstacles
for potential resolution. And don’t play keep away with your discovery
forcing the motion to compel. This tactic may later bring a motion in limine
to preclude the evidence based on the keep away strategy. If necessary and
possible,
work with the other side and the mediator to continue the mediation date so
to complete your discovery work.
Make Sure You and Your Client are on the Same Page
Over and over again, attorneys fail to adequately prepare their clients for
mediation. Attorneys also fail to adequately get themselves familiar with the
expectations of their client for purposes of case settlement. Be sure to meet
with your clients well in advance of the mediation instead of hours before it
commences. This way you can adequately prepare your client for what may happen
from the settlement discussions. In that way, if bad news does arrive at the
mediation, it won’t be the first time that your client will have heard
this information. You will not be surprising your client when you explain the
reasons for the low settlement offer or the high demand.
Meeting with your client well in advance will also give you the opportunity
to be adequately prepared to explain the case to not only the mediator but to
the other side. Your meeting with your client in preparation for the mediation
may end being one the most important events of the case timeline. And doing
it far enough in advance will allow you to create persuasive arguments at
mediation
for your settlement position. This will demonstrate that you have strong
command
of the facts regarding your client and don’t have to defer to your client
for an explanation of how the accident happened or what caused the breach of
contract.
Get a Handle on Your Case
Having met with your client well in advance of the mediation should give you
the opportunity to create an outline for purposes of discussing the case
intelligently
and articulately with the mediator and the other side. This outline can be a
condensed, single page version of your settlement demand letter or case
evaluation
report with the date of accident or date of breach of contract, subsequent
treatments
relating to an injury matter with costs for treatment or efforts to mitigate
a breach of contract and associated damages. The documentation to support this
does not need to be in any great volume. Bullet points setting out dates and
dollars works precisely and effectively.
Also, be ready to explain applicable law as it relates to the case. This
applies
both for plaintiffs and defendants. Credits and offsets may be present for a
damage value that can affect settlement negotiations. Don’t find out for
the first time at the mediation what your client’s total medical expenses
are as a result of an accident. Know why treatments are being discounted and
the basis for same. The same applies for a breach of contract action.
Don’t
look to your client to explain why they have a damage claim as a result of a
breach of contract. Know the numbers inside and out and be ready to explain
applicable law for any liens, credits, offsets or potential mitigation. That
way, when asked by a mediator does the Hanif case apply you won’t have
to ask who Hanif is.
Develop a Strategy for Negotiation in Order to Dance
Before getting to the mediation, the attorney and client should have an
understanding
of the strategy for negotiation to commence the negotiation dance. The attorney
should be ready with his client’s consent to set out a realistic and
reasonable
opening settlement demand/offer keeping in mind the bottom line number. The
attorney and client should understand what increments they are going to attempt
to move in corresponding negotiations so to continue the dance. At all times,
you should stay within the original strategy plan and keep on negotiating while
recognizing concessions may have to be considered that will result in
adjustments
of this original strategy plan.
With all the work that is done in preparation for a mediation, a party does
not want to be forced to throw in the towel and walk out of a mediation because
the so-called negotiation dance is not going according to plan. At that point,
all efforts should be undertaken to engage additional discussions with the
mediator
to facilitate alternatives to overcome a potential negotiation impasse. This
may result again in modification of the negotiation strategy plan. However,
reaching the bottom line should never be out of focus as that is the one of
the purposes of the mediation. Being patient with the negotiation will allow
the dance to continue if you are still within range of your settlement
target.
Conclusion
Using guidelines in the common tort or contract action at mediation can help
achieve success for a potential settlement. They can be applied with equal
success
for any more complex case or for any Mandatory Settlement Conference. These
guidelines include 1) being adequately prepared by getting your discovery done
well in advance of the scheduled mediation; 2) meeting with your client long
before the scheduled mediation in order to fully understand all facts of the
case and to confirm settlement strategy; 3) creating a litigation outline that
explains the facts regarding an accident or breach of contract with damage
claims
including applicable law for any liens, credits, offsets, and mitigation; and
4) have a strategy for the negotiation so that the dance that occurs in the
dialogue of the mediation results in achieving the magic number for a
resolution
of the dispute.