Meditating on Mediating, Part Two: Louie’s Top Five Tips

by Wilson Elser

In a recent post, we discussed the reasons to mediate and how the process can be bewildering – in a Lewis Carroll sense – to first-time E&O defendants. This time I’m sharing my Top Five Tips for an effective mediation.



Louie’s Top Five Tips

  1. Be prepared. It is the Scouts’ motto, after all. But just as the Scouts go beyond the motto to a whole handbook full of knot-tying and other outdoorsy skills, telling lawyers to “be prepared” only scratches the surface. Being prepared for a mediation means knowing the other side’s pressure points, motivations, and realistic goals. You can help the mediator be prepared, too, by illustrating your mediation brief with exhibits, especially documents the other side signed, received, or wrote.
  2. Share mediation briefs. Whether or not the mediator’s rules require it, all counsel should want to share their mediation briefs simultaneously when the mediator receives them. Why would we want our client to be shocked by the other side’s opening position during a joint session? If there’s a smoking gun, it will still be hot if the case doesn’t settle – the jury certainly will not know of it beforehand. Parties can always supplement their shared briefs with private letters for “mediator’s eyes only.” Shared briefs may be the only opportunity you have to state your case directly to the opposing party before opening statements at trial.
  3. Deal with logistical problems early. If a defendant’s insurance adjuster needs to leave at 3:30 p.m. to catch the last flight, everyone should know that at 9:15 a.m., not 3:15 p.m. If a key decision maker cannot attend, make sure that he/she is genuinely available by phone. The momentum toward settlement can be lost in an instant when logistical snafus interrupt the flow.
  4. Don’t rely on “mediators’ proposals.“ Some very fine attorneys will disagree with me on this. I view an unfettered “mediator’s proposal” as a blank check, a cop-out by counsel. When the parties are quite close, the mediator can take the sting out of accepting “the other side’s number” by stating a compromise that he/she knows will settle the case by telling both sides the same number on a take-or-leave-it basis. But when the parties are very far apart, and someone just wants to get out of the room in time for dinner reservations or a ball game, letting the mediator simply pick a number is an abnegation of responsibilities. Miss the ball game, even if it’s a playoff.
  5. Don’t say a number out loud unless you mean it. There is always posturing in mediations. What both sides need to avoid is backtracking: indicating that a number would be acceptable if demanded or offered, then rejecting it as “unauthorized” or “just a suggestion.” In other words, there’s no crying in baseball, and no “blurting out” in mediations. A corollary rule: if you have to speak aloud a number for which you lack authority or you don’t yet want to offer, be very explicit when telling the mediator that it is not to be repeated in the other room. And if the mediator repeats it anyway, without your permission, never, ever work with that mediator again.

Not necessarily the firm’s or my clients’ opinions, just my two cents. Oops, I blurted out a number!



DISCLAIMER: Because of the generality of this update, the information provided herein may not be applicable in all situations and should not be acted upon without specific legal advice based on particular situations.

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