Preparing your client for a productive mediation2014 July
Two young siblings are quarreling over the only orange left in the house. They both want it, and they refuse to compromise. Their parent, trying to relax in the other room, comes into the kitchen with a mission...to restore peace! Grabbing a knife out of the drawer, the parent cuts the orange in half and triumphantly leaves the kitchen, and the arguing kids, behind. Later in the afternoon, the parent returns to the kitchen to find a mess on the counter. Amidst the clutter is the left-over rind of half an orange, which had been eaten, and the other half of the orange – uneaten – with the rind removed. The parent is confused – what happened? The children provided a simple explanation. One wanted the orange for a snack and the other wanted to use the rind for a recipe. What went wrong? Although it was clear what they were fighting over, the parent failed to ask what the argument was truly about. By quickly cutting off the conversation – and cutting the orange in half – the parent reached a compromise that satisfied her need for an expedient resolution but failed to satisfactorily address the needs of either of the quarreling siblings.
The orange story is a commonly told parable about the importance of understanding the needs of each party before one can arrive at an effective solution. Because personal-injury cases involve trauma, pain and emotional upheaval, putting a price on the injury often feels incongruous and unsatisfying to the injured party, making settlement difficult. The concerns and needs that the personal-injury plaintiff brings to the mediation process are not always as simple as calculating an appropriate monetary valuation. Emotions, hidden objectives, misunderstanding, inflated expectations and lack of familiarity with the legal process may create emotional barriers that can be obstacles to a satisfying, reasonable and fair resolution.
Mindful client preparation in advance of the mediation session can be an invaluable tool in helping your client to overcome these emotional barriers and negotiate with success during the session. Following are several common barriers to resolution and the things you can do in preparation for, and then during, the mediation to help your client make the most of the process.
Manage expectations about the negotiating process
In most areas of law, outside of personal injury, a monetary award provides direct and complete replacement of what was lost. The loss is concrete and easy to calculate. If A loans B $500, and that debt is not repaid, A seeks as compensation the return of the $500, plus any interest due under the loan. If one damages another’s personal property, the law provides compensation by requiring the return of money necessary to repair or replace the damaged item. Most forms of legal compensation are, ideally, commensurate with the harm or damage suffered.
Personal-injury suits seek financial compensation for damage and harm that cannot be quantified. Nothing can truly compensate a parent who has lost a child, or a person who suffers a disabling and catastrophic injury. Ask a widowed spouse, an amputee, or a person dying of cancer from asbestos exposure what amount of money would truly compensate them for their loss or pain. The answer is, obviously, no amount. This principle applies as well in smaller, less catastrophic injury cases.
Personal-injury mediations evoke strong emotions precisely because harm to one’s physical and emotional health and well-being is subjective and cannot be accurately measured. In mediation, the personal-injury plaintiff is asked to place a dollar value on their suffering, loss or pain. This artificial concept is palatable − until the defense opens mediation negotiations, as is often the case, with a low-ball offer. To the person who has suffered, this feels callous, insensitive, and mean spirited. It is not surprising that the injured party takes offense and asks, “Is that what they think all of my pain and suffering is worth?”
Prepare your client for this part of the process in advance. It is, after all, a negotiation. Explain to the client that the only number that matters is the one they hear at the end of the session, not the one at the outset. You and the mediator understand this, but often the client does not. Getting over that initial shock and disappointment can be difficult if one is not prepared to view it as a stage in the process, rather than an insensitive devaluation of his or her loss.
Familiarize the client with the selected mediator
Although you will probably be the one to select a mediator, it may be helpful to include the client in the process. Once you have made the selection, share your thoughts as to why you chose the mediator. Tell your client about the mediator in advance of the hearing and explain why you thought he or she would be a good fit. If the mediator has a Web site, bio or resume that you can send to the client, do so. The more the client knows about the mediator in advance, the easier it will be to connect when the parties get together.
If you have a particularly emotional client, select a mediator who is sympathetic and understands and relates well with people – someone who is patient and listens well. The mediation process should allow the plaintiff to express their emotions. Exposed emotional barriers are easier to conquer than those that are hidden from the process and its participants. However, ultimately you must select someone who you know can eventually redirect that emotion and help the client focus on the issues at hand.
On occasion, I will learn from a lawyer in advance that the client is apprehensive about the mediation. In those situations, I sometimes offer to give the client a phone call in advance. Often an informal introduction over the telephone in advance is enough to ease the client’s nerves and offer the reassurance they need to comfortably participate in the process.
Recently, plaintiff’s counsel in a particularly difficult case advised me that his client wanted to cancel the mediation. His client was panicking as the mediation date got closer, but he wasn’t sure why. I offered to give her a call to talk to her about it. After establishing some rapport, she revealed to me that she was a recluse who hadn’t left her apartment, been in public or even gone outside in several years. She wasn’t afraid of the mediation itself; it was the thought of leaving her apartment that terrified her. After several conversations over the course of the next couple of days, she eventually agreed to attend, and, to everyone’s surprise, she actually appeared for the mediation.
Discuss the risks of litigation
The mediation process is often scary and threatening to the layperson. There are always risks in litigation. You can be sure that the mediator will point those out to your client at some point during the mediation session. Those risks should be discussed candidly before the mediation begins so that the discussion, when it occurs, doesn’t come as a shock. A client who feels blindsided by unanticipated risks will feel a loss of control, and begin to “dig his heels in” to protect his position. That is a natural reaction. All litigation is risky, and often evidence is uncovered in discovery that reveals complications that were not anticipated when the case began.
The mediation is not a good time for genuine problems of proof to be revealed to the client for the first time. If those problems are first disclosed to the client by the mediator, the revelation may undermine the client’s confidence in the lawyer – especially if the issues haven’t been discussed prior to the mediation. A candid discussion about difficulties with the law or evidence must take place prior to the mediation session in order for the client, and you, to be ready to deal with them during negotiations. A client who is aware in advance of the weaknesses in his case will be better equipped to consider and evaluate them during the mediation process.
Explain the economics of the litigation
Personal-injury clients are sometimes under the mistaken impression that a contingency fee arrangement is a guaranteed win-win proposition for them. Some believe that all they have to do is show up when asked and they will receive their share of any money recovered. Litigation is expensive. On smaller cases, the truth is that the litigation costs can sometimes exceed the value of the case itself. Clients must understand this before they mediate. Even valuable cases can be extremely expensive to litigate. Clients must come into the mediation with realistic ideas about the cost of proceeding with the litigation. That is a discussion that you can anticipate the mediator will have with you and your client. Your client should be fully aware of these issues ahead of time.
As a trial judge, it was not unusual to have parties appear on the day of trial with no idea that a § 998 offer had been served on them, or that they could be held liable for defense costs and attorneys’ fees even if the verdict was in their favor. If served with a § 998 offer, your client has an additional risk in going forward with the trial. You not only have an ethical obligation to inform them of the statutory offer, but you also must explain the risk that it presents to them. Failure to do so borders on malpractice.
In a recent trip-and-fall case, the plaintiff at mediation was offered, and declined, a settlement offer of over a half million dollars. There were significantly lower § 998 offers on the table from each of the two defendants. The matter went instead to trial. The jury returned a combined six-figure verdict against both defendants. Nevertheless, neither party’s share of liability exceeded the amount of the § 998 offers. After paying each defendant’s costs and fees, as well as her own costs, the plaintiff ended up recovering nothing.
Trials are risky. The specific risks should be explained to the client in advance of the mediation so she has the information and tools to take those risks into account in appropriately evaluating her case.
Manage external influences
Lofty hopes are understandable. However, unrealistic expectations are a recipe for disappointment. Do everything you can to avoid creating them. If you have been upfront with the client and dealt with each of the issues discussed above, expectations will be manageable. However, exceptional headline-grabbing jury verdicts publicized in the media, Larry H. Parker advertisements, uninformed opinions from friends or family members, and other outside sources can create unrealistic expectations. Endeavor to manage those expectations in advance by addressing concerns, correcting misinformation and creating realistic goals.
Discuss legal barriers and factual weakness
A party who enters the mediation with misconceptions about potential legal hurdles in their case will be equally set up for disappointment. In a recent scenario, the plaintiff, “Trevor,” was a single man in his mid-60s who tripped and fell while walking in a commercial parking lot. Instead of walking on the pavement, he took a shortcut through an island full of shrubs and bushes. As the mediation began, it became clear that Trevor mistakenly believed the landowner was legally responsible for his injury, merely because the injury occurred on the owner’s property. This is a common misconception. Trevor had suffered fairly severe injuries, so his medical expenses, pain and suffering were substantial.
Trevor’s attorney had not dispelled him of this notion in advance. Naturally, he came into the mediation with highly unrealistic expectations. The landowner was willing to negotiate a settlement, however, the amount offered was only a fraction of what Trevor expected, as the landowner believed there was virtually no evidence of liability. When the disappointing offer was communicated to Trevor, so was the landowner’s position on liability. This created barriers in the mediation dynamic that made resolution extremely difficult. It discredited Trevor’s attorney, who had never given him a reasoned assessment of the evidence supporting liability in advance of the mediation. It put the lawyer in an awkward and ineffective position – she could either try to save face and maintain her untenable position or else admit to the client, for the first time at the mediation, that his case had serious factual weaknesses. Neither option was conducive to achieving a resolution at the mediation session. This problem was entirely preventable. A pre-mediation discussion about the requirements of fault and the concept of comparative liability would have served Trevor well and prepared him for the push and pull of the mediation process.
In contrast, in another case, a deaf couple walked their small dog on a leash into a pet store to shop. As they entered the store, their dog was suddenly attacked and killed by an unleashed pit bull that was in a store-supervised dog-training class. The mauling, which was horrific, was caught on video. Had the attorney not prepared his clients in advance, this might have appeared to them to be a perfect case. Unfortunately, there is no cause of action for wrongful death of a pet, and Dillon v. Legg doesn’t extend to emotional-distress damages for non-human “relatives.” The plaintiffs’ attorney, however, did a terrific job in explaining the legal obstacles to his clients in advance of the mediation. As a result, the clients’ expectations were realistic and their objectives were achieved.
If there are legal hurdles that might be difficult to overcome, make sure your client is aware of them ahead of time. An honest and candid conversation about potential legal obstacles in advance of the mediation will prepare the client to deal honestly and effectively with the problems in his or her case and will enable them to more easily accept a realistic resolution.
Helping your client during the mediation session
Often a mediator will appear to take a position advocated by your opponent. Indeed, sometimes it will be more than just an appearance. Don’t win an argument and lose an opportunity. If you simply say you don’t agree, but are willing to listen to what comes next, that is sufficient to keep the process going. It is also an adequate signal to the mediator that what follows may not be acceptable. If you insist on proving your opponent wrong, you risk awakening a fruitless debate and jeopardizing the mediation.
Here are some tips to increase the prospect of success. Use the mediator. If, despite all of your efforts to prepare your client, he or she still has unrealistic expectations, let the mediator deflate them. If your client believes that “any fair person” would have to view the facts in a certain way, let the mediator offer another view. If your client is absolutely convinced of an outcome, let the mediator undercut that conviction. The mediator can float “trial balloons,” convey positions you would want to disclaim, and hint at the range of acceptable resolutions without revealing your position.
Be flexible. Listen to your client. Be willing to adjust your expectations in either direction as information is exchanged. The benefit of settling a case at mediation is that the parties choose their own resolution. When it works, there really is no better way to resolve any legal dispute.
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