Miles Mediation & Arbitration

Your case should have settled at mediation.  You wanted it to settle.  It didn’t.  Of course, you blame the mediator.  But did you contribute to the impasse?

I have functioned as the selected or appointed mediator in about a thousand cases in North Carolina.  I have also represented one side or the other in thousands more.  Mediation has been mandatory in Superior Court cases in North Carolina, and most federal courts, for over twenty years.  So we all should have a pretty good idea about which cases should settle on that day, right?  Well, mostly.  I am occasionally frustrated to mediate a case that should settle but doesn’t, even when the attorneys both express their desire to get the case resolved.  They may blame me when it fails, and they may be right sometimes.  But, when I analyze impasses, some common themes have emerged.  Here is a list of attorney practices I have observed that can sink the resolution of a case that should have settled.  Ask yourself the following questions.

1. Did I plant a concrete result in my client’s head that could not be overcome by reality?

It is a natural occurrence.  Your client asks, “How much is my case worth?” or, “What should I be willing to pay or do?”  For the plaintiff’s side, this question, and your answer, is fraught with peril.  If you give your client a firm answer, that answer is locked into their head.  If it is a dollar figure, their imagination starts spending the money and they are happy to share that number with family and friends.  On the defense side, the issues are a bit more complicated, particularly if your client is familiar with litigation, but the principle remains the same.  Avoid a firm answer.  Let the facts and litigation process, particularly on the day of mediation, dictate an answer.  You can always decline a result at mediation, but it should not be a foregone conclusion in your client’s mind.

2. Did I prepare my client for a trial rather than a mediation?

A trial is a miniature war.  Mediation is not. Yet, too often, I see clients entering the mediation process with the impression that this is a fight, not a negotiation that will involve considering other points of view and, dare we say, compromise.  You need to educate your client on the difference.

3. Did I create emotional obstacles in my client’s mind that preclude rational analysis?

I don’t care what type of case it is – at the end of the day, settlement is a business calculation.  Even in extremely emotional disputes, such as wrongful death cases, that rule holds.  In such a case, for instance, it is imperative that the plaintiff, presumably a family member of the decedent, realizes that a settlement is not a judgment on the value of the lost person.  Instead, it is a determination of the value of a claim, one complicated by many factors related to liability and damage issues.   No matter what the claim may be, it is just that.  It is not an individual’s value to the planet or, in other types of cases, an assault on the person who feels aggrieved.  Your client needs to understand that.

4. Did I fail to factor in outside considerations, such as liens?

It is not uncommon for me to learn, in the middle of a mediation, that an attorney has no idea and often has not considered the impact of outside factors, such as outstanding liens.  You may not be able to calculate a firm figure for those liens that still will require negotiation in the short term, but you should be able to inform your client of the parameters.  On the defense side, you also need to be aware of outside factors, such as other obligations and the client’s ability to pay quickly or over time.  There are other outside factors.  The more you know, the better.  These should be discussed with your client before the mediation commences.

5. Did you bring surprise documents to the mediation?

I hate this one, which is quite common.  Nothing can torpedo a mediation like an attorney coming in with a stack of new documents related to the case.  Depending on the nature and/or volume of the documents, the mediation may simply blow up in short order.  Don’t do it.  If circumstances arise that force you to provide new documents, such as ones that arrive at the last minute despite your best efforts, contact the attorney on the other side immediately, before the mediation starts, to explain.  You possibly can salvage the situation.

6. Did you go into attack mode in your opening statement?

Your client may appreciate you becoming a snarling junkyard dog in your opening statement.  In theory, clients want a warrior attorney, mowing down the client’s enemies.  Play that card at trial if you like, but it will not help your client at mediation.  You want the other side to listen to your wisdom and logic in an opening statement, presented humbly and compellingly.  If you go into attack mode, they stop listening and this invites a similar response from the other side’s attorney.  After all, they can’t look weak in front of their client after you put on a show.  If you want to settle a case, don’t do this.

7. Did you do all the necessary math, and work with the other side to resolve math-type issues?

I am surprised to see how often this happens, particularly in construction dispute cases.  The attorneys come to the mediation table with varying conclusions as to basic math that pertains to relevant issues in the case.  On more than one occasion, I have sent the attorneys to a separate room with a calculator.  In personal injury cases, disputes often pop up as to what the Rule 414 damages entail.  Do your math ahead of the mediation and share your conclusions with the other side in an effort to agree.  It’s just math.

8. Did you argue with the mediator to impress your client?

This one drives me nuts.  I talk to a client and attorney in a breakout room and politely chew on a weakness in their case.  The attorney jumps in and vehemently and loudly disagrees, even where he or she knows I am making a point.  They are afraid that if they don’t do so, their client will perceive them as weak, so they argue to impress them.  It doesn’t help the process.  Again, this is not a trial.  I am there, as a neutral, to help your client achieve a rational goal, not denigrate anyone’s case.  A better approach is to listen to the mediator, explain what the mediator is saying to the client (this reinforces your credibility), and then politely disagree as appropriate.  It is also helpful that you acknowledge the reality that an ultimate factfinder may determine the “wrong” result.  Maintain your composure and work with the mediator to educate the client about the process.

9. Did your negotiation start too high or too low, or take odd steps?

This problem is so common that it actually has become more of a speed bump, rather than a true obstacle.  But it creates wasted time, and time is costing your client money.  I have become adept at explaining to clients that a first demand or offer may look silly or insulting, but that they should ignore it.  But it can still aggravate clients needlessly and, once in a while, set a tone that leads to impasse.  Why do it?  Also, once the negotiation process begins, at least try to make your moves somewhat logical.  The case should settle and you want it to settle.  Save the games for somewhere else.

10. And, finally, was the impasse really the fault of the mediator?

We all know the answer to this.  Yes, it was.  It always is.