Do You Trust Your Mediator? 3 Ways To Judge

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Settlement requires compromise. The mediator must have everyone’s trust to facilitate the process of each participant letting go of something they viewed as crucial. Here are three measures to use when choosing your mediator.

Motive
Does the mediator have any motive other than bringing the parties to resolution? Does anything in the way this mediator was nominated suggest the person cannot be impartial?

Traits Needed To Bring The Parties To Resolution
In negotiation, parties make themselves somewhat vulnerable to their mediator. Does the mediator have the kindness, patience, and background to understand the emotional side of the dynamic?

I was once in a mediation where the mediator walked in and immediately announced, “This case has a value of $X.” This kind of arrogance, impatience, and rigidity does not instill trust and is unlikely to bring the parties to resolution.

Understanding
Does the mediator demonstrate an understanding of the parties’ wants and needs? Just saying what you want may not move the negotiation ahead. Sometimes I have to ask, “What do you need?” That can be harder to define—verbally and emotionally.
As a mediator, I am omni-partial; I am on everyone’s side. Working together, we will get to resolution.

Settle and Sue – Don’t Let It Happen To You

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As the attorneys and adjuster hammered out the settlement agreement in the main conference room, I passed the smaller room and saw the plaintiff weeping. I’ve also seen some very angry defendants. I have had to take steps to assure that parties didn’t feel ramrodded into settlement.

These are extreme examples of a situation which could lead to a second lawsuit, this time for legal malpractice, a phenomenon called “Settle and Sue.”

Be Realistic
At intake, some attorneys will provide prospects a rosy picture of their likely outcome to induce them to sign a retainer agreement. (I know. You’re shocked, right?) Then, as time passes and expenses mount, that favorable outcome no longer seems so inevitable.

At this point, clients may seek new counsel. But they might not be successful. That could be due to a large lien for advanced costs or because other attorneys are wary of working with what could be the client from hell. If the client has already gone through two attorneys, the third lawyer on the case is likely to see a history of problems.

Even when attorneys strive for transparency at intake, there are usually twists betwixt intake and mediation.

Keep the Client Informed
And that’s why it’s so important to let the client know what is happening in a timely fashion and how it affects the evaluation of the case. Even if the professional’s evaluation of the case is unchanged, it’s important to inform the client of major events such as receipt of discovery or hearings.

Will the client actually read these status reports? Perhaps not. But a well-drafted report will explain what is happening in easily understandable language. When the client expresses dismay at first learning about adverse information during mediation, it helps to have copies of the status reports readily available.

Unreasonable Client Demands
Clients get information from many mass media sources. For example, if a TV show or Google says important information can be extracted from the opponent’s cell phone, a client may demand that the attorney hire an expert to do just that. These types of demands may be cost-prohibitive or simply not going to be helpful for this situation. Even when clients are told that the procedure they want will cost, say, $100,000, they may grumble now, but later claim that the attorney’s refusal to comply with a “simple request” is what forced them to agree to a terrible settlement. Documenting the substance and outcome of these conversations is critical.

Prepare for Settlement
I’m amazed at the mediation participants who show up with what seems like willful ignorance of the case. Some parties cast aspersions on their opponents with little consideration of the merits. Participants need to pay attention to others’ input, not brush it off. Some participants in remote mediation seems to be barely there; yet, they are being asked to make important decisions.

Getting these folks to pay attention at mediation can be a challenge for me and their representatives. If an attorney does manage to wrangle a settlement, participants with buyer’s remorse could later threaten a legal malpractice action.

How the Mediator Helps
As mediator, at the outset I always tell participants that nothing can happen without their consent. When it’s time to document a settlement, settlement terms should be carefully reviewed with the parties to make sure there is no misunderstanding. Parties should not feel coerced to enter what they view as an unjust settlement.

Sometimes attorneys ask me to deliver bad news. They are afraid to tell the client what the client refuses to hear. My job is to guide the parties and their representatives to recognize the best path forward to settlement. Good preparation and mediation participation can avert the possibility of a “settle and sue” action.

Has the Philosophy of Litigation Management Changed?

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For decades, I have encouraged parties to evaluate early and often with a view to closing cases to minimize the expenditure of time, money, and stress. So I was recently surprised by the published contrary view of a litigation management expert.
“Litigation Is Not Like Wine”
Litigation is not like wine—it doesn’t get better with age, goes the old saying. In most cases, the longer the dispute drags on, the more it costs to end it. I have seen many cases where a defendant had an opportunity to end a case early and years later ended up paying multiples of that early value. Plaintiffs can incur more expenses without increasing the value of the case.Litigation is stressful for parties, even those who are representing organizations. Claimants who are frustrated by a lack of progress in their case may ruminate and discover additional reasons for compensation. Some of these can increase the final settlement amount.

Injury claimants usually continue to treat. This increases the likelihood of compensable side effects, such as from medication or due to mental illness. Not only does the patient undergo additional medical procedures, but the cost of those procedures rises. A study by the Institute for Legal Reform found that tort costs grew at an annual rate faster than inflation, averaging 7.1 percent between 2016 and 2022.

Is Your Opponent As Fierce as a Bear?

The expert, a speaker at a major litigation management conference I had spoken at many times myself, advised defense counsel and claims professionals, “Don’t poke the sleeping bear.” The message was that if the plaintiff wasn’t contacting the defense, the defense shouldn’t do anything to contact them: “If you haven’t heard anything from plaintiff’s lawyer, why do that?”

The expression “don’t poke the bear” is an admonition against angering or offending someone, particularly if that person is more powerful than you. Let’s first note that intentionally angering or offending your opponent is never a good litigation strategy. It’s also an ethical violation of rules that call for civility.

But let’s assume that this speaker was referring to innocuous communications. Yes, some claims professionals and counsel on both sides of a conflict don’t pay attention to their pending cases. Then they scramble to prepare for mandatory events. Sometimes I see these folks at mediation, and it is obvious they haven’t prepared at all. Let’s call them the teddy bears. They’re not fierce.

But what if that silence masks the activities of a fierce bear who is gathering evidence and research to take a big bite out of your case? If you aren’t regularly talking about the possibility of settlement, you may not learn the strengths and weaknesses of both of your cases until late in the game. That can impair your ability to properly prepare. Your opponent may have already battened down the stories of witnesses you didn’t know about, may have already retained the foremost expert, perhaps regarding a condition or circumstance you had not discovered. In one of my mediations, claimant’s counsel disclosed he had arranged for a famous grizzly to handle the trial if the case didn’t settle.

Because lawyers are required to transmit any offers of settlement to their clients, even when an attorney has been dilatory, the client may be anxious to end the dispute. Ongoing communications about settlement may entice a litigation-weary party.

Which Philosophy?
The answer to “Why do that?” is that regular communication amongst parties helps you scope out what those other folks are (or are not) doing. Regular communication creates a path to a fair, early settlement.

Obviously, every case has unique circumstances and participants which dictate litigation management choices. However, a deliberate choice to always go radio-silent could damage your client’s result.

Pay Attention to Your Gut Feeling

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Intuition is the brain function that lets you jump from one piece of information to another. It’s why you may get your best case management ideas in the shower or even in a dream. It’s why you have that gnawing feeling that something is not quite fitting together the way it should to make sense. A decade ago, I wrote a book Personal Injury Case Management: What’s My Case Worth? In Chapter 3, Gut Instinct, I wrote: Experienced lawyers and insurance claim personnel use their accumulated knowledge, their gut instinct, every day in evaluating personal injury cases. In general, the more experienced the evaluator, the better the evaluation.

The Difference Between a Litigation Plan and Lockstep Litigation
When your brain makes that jump or gives you that gnawing feeling, the best thing to do is to formalize a plan to resolve the issue. Create a table with the issue on the left and what you need to do to move ahead on the right. That might be an on-the-ground investigation, a subpoena, limited new discovery, writing a letter to your opponent, or scheduling a mediation.

The one thing that is unlikely to provide the missing piece of the puzzle is to keep sending out the same template discovery and asking the same questions you ask in every case. When your intuition sends you a signal, don’t ignore it.

Intuition at Mediation
One of the benefits of mediation is that it brings together the real players. Even in a virtual mediation, you can observe body language and speech mannerisms. You can pick up emotions and motivation. Sometimes, a party is looking for revenge, but more often they are looking for validation of their own story.

You can also sense if your opponent is not fully prepared. Impressing your opponent with your mastery of the case can drive them to settlement.

As a mediator, I have often sensed whether people were really ready to settle. I was able to dig out information that was irrelevant to the case, but was the actual settlement driver. For example, one claimant had a sick spouse and wanted to settle to better care for the spouse. The statutory confidentiality of the mediation caucus lets me ask the questions my intuition prompts and which could not be asked in discovery.

Pay Attention To Your Gut

Intuition is informed perception, not blind speculation. Use your knowledge, your research and your experience to guide your settlement negotiation. Rely on the mediator’s intuition, too.

Examine Your Process to Settle Cases Faster

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The real goal of case management is to economically conclude the case with the best outcome you could realistically expect. Yet, litigators spend a lot of time spinning their wheels on activities that don’t yield significant progress toward that goal.
Look at Your Process
Chances are you follow a protocol. That’s how you were taught to manage a case. That’s the way you and your firm have always done it.What Do the Stars Do Differently?
Is there someone in your organization who closes cases quickly? What is that person doing differently? This star performer may not even realize they have a different approach.  With permission, spend some time looking through some of the star’s files. Maybe sit in on a hearing, mediation, or meeting.

Then review one of your own recent cases. How well do you think you managed it on a scale of 1-10? What would it take for it to be have gone better? Did all your activity provide real value to the client? The answer isn’t in what others do; look for answers in the actions you control.

Pull out a closed file where things went really well. What was different? Did you periodically evaluate the case and timely communicate that evaluation to your client? Did you cultivate a collegial relationship with your opponent who can help you work through information—or view that person as an enemy?

Create a Miracle
Find the main obstacle to getting to your goal. Then focus your attention on resolving that one thing. In his book Reset: How To Change What’s Not Working, Dan Heath calls that the Leverage Point. A little bit of effort focused on fixing the Leverage Point will yield disproportionate returns.

If a miracle happened tomorrow to resolve the bulk of obstacles to quick resolution of your cases, what would that look like? That’s your Leverage Point.

Prioritize resolving that issue. If your first concerted efforts aren’t working, move on to a different solution.