Key Mediation Strategies for Achieving the Best Outcome
By Drew C. Timmons
Trial Attorney, Fried Goldberg LLC
In nearly all civil injury cases, participating in a mediation prior to a jury trial is inevitable (court-ordered or not), and in many cases, it results in the resolution of the case.
In every mediation, you have an opportunity to (1) obtain a successful settlement for your client; (2) inform the other side of the realities of the case and push them closer to your goal; (3) highlight the issues that may prevent settlement and which might be eliminated; and/or (4) more effectively identify the risks associated with moving toward trial.
As you approach mediation, these are the guidelines to follow for a successful outcome, even if that outcome is not a settlement.
Set Expectations
Before you go to mediation, you need to know why you are going, who proposed it, and what you and your client are trying to accomplish by being there. This background should help you set realistic expectations for the length of the mediation, the offers you may receive, and the potential for an actual settlement.
At the very minimum, you need to discuss with your client the process associated with mediation, i.e., it is not a trial; there is no winner or loser, and the ultimate decision is up to the client. But more than that, you need to discuss with your client what they are expecting from the case in general and then, if necessary, adjust your client’s expectations to fit your own.
Under no circumstances should you allow your client to enter into the mediation without having first discussed your personal assessments of the case value and the anticipated defense evaluation.
Set the Value
The contracted limits of an insurance policy often guide opening demand figures. But since the stated purpose of mediation is a negotiation, before you get there you need to truly identify the realistic and target verdict and settlement values of your case. Instead of just picking a number that starts with a 1 or a 5 and ends with a 0, go through the process of justifying every dollar you intend to request.
Ask yourself: If I were asking a jury to award this amount, how would I ask them to get there?
Of note, typically, damages drive value, not liability. The defense lawyers are aware of their client’s bad acts, and unless liability is hotly contested or there are severely aggravating circumstances, the way the accident happened won’t add any weight to their wallets. Focus your energy on your client’s actual damages, including the little things that can have large emotional impacts. In my experience, the best avenue to assess your client’s true pain and suffering is by way of an in-person meeting with your client and their close friends.
Set the Insurer’s Reserves
The insurance defense world is highly dependent on young associate attorneys to perform discovery-related tasks. Occasionally, the associate doesn’t even know much about the case and may not identify significant testimony when it occurs. When experienced defense partners are not involved in the case until mediation, there can be a substantial disconnect between the parties as to the nature and risk of the case, which leads to a substantial disconnect in case evaluation. How do you prevent that from happening? Tell the insurance carrier what you want before you get there.
Always send a detailed pre-mediation demand with a number you can justify with your case evaluation, and provide thirty (30) days for a response. A copy of the demand will have to be provided to the insurance company, which means that they will not be entirely reliant on the defense lawyers’ reporting. Use this demand to highlight your best evidence and let them know how you will sidestep any obstacles. While these conversations may occur at the mediation, by then it is too late to get more money on the file.
In cases where it is justified, it is also advisable to go ahead and take damage witness depositions for use at trial prior to any mediation. This lets the carrier know you are serious about trial, and it gets the necessary damage evidence in front of them before they solidify a faulty evaluation based on medical expenses alone.
Prepare the Mediator
Once you’ve agreed to mediate, the next step is identifying the mediator who best fits your case. You need someone your client will trust, but you also need someone whose attitude, demeanor, and typical mediation tactics will advance resolution rather than harm it.
Also, just like with the insurance carrier, do your mediator the favor of sending a copy of your demand or a similar report on your case before the mediation. More than that, give them any insight you may have about anticipated problems or unrealistic client expectations. An informed mediator will be a much stronger advocate for resolution.
Know Your Case
All of the work described above should put you in a position to answer any question that the defense lawyer, mediator, or insurance carrier has about the case during the mediation. Knowing the facts and issues not only makes you look good in front of your client but also shows that you came prepared, which should inform the defense that you will also be prepared if the case pushes forward to trial. If necessary, have specific documents and records available for quick use, just as you would in a deposition; having an adjuster lay eyes on a damning piece of evidence has much more value than your discourse on it.
Negotiate Effectively
There is a time and a place for matching moves, but it can make the mediation drag on, and it does not typically advance your actual goals. Make moves with purpose; after the opening offers and demands, every move should send a signal of some kind. In the same sense, don’t be afraid to come off your number substantially if you have the room to do it, and doing so is the only way to see the defense’s true cards. Depending on the mediator you use, staying in the clouds can cost you a quick $5,000 and yield no settlement and no information.
On the other hand, do not automatically cower to the threat of the defense leaving, and do not be afraid to make such a threat yourself (or actually leave) if it is warranted. There is no sense wasting a day if the offers are increasing by pennies.
Especially when there is a lot of ground to cover and/or both parties are afraid of giving away too much, brackets are extremely helpful. Of note, in conversations with the mediator, understand that nothing you say is truly confidential. Mediators will often relay information without saying that you said it, and it usually has the same effect.
The Aftermath
If your mediation results in a settlement, you still have some work to do. Even if you did not hit your target, and especially when you did, make sure your client feels like a winner. You do not want them to have buyer’s remorse. In that same vein, make sure you give the client an approximation of their take-home before they accept a final offer and emphasize the anticipated wait before the check will actually arrive.
If your mediation fails, don’t make the mistake of pushing this case to the side. If it is appropriate, immediately after the mediation, discuss with the mediator whether there is a potential for a mediator’s number to be used. However, remember that this number will likely be as unpalatable to you as it is to the defense.
Additionally, while the mediation is still fresh, make a list of all the issues that the defense highlighted in an effort to get you to take less than the true value and consider what you can do to eliminate or avoid those barriers to settlement – then do those things.
Finally, when the defense has made clear that it will not pay your true value demand, send them an O.C.G.A. § 9-11-68 offer of settlement for that same figure after mediation. Even if that doesn’t force their hand, you’ve done what you can to set up your client for a better recovery at trial.
Maximize Your Trucking Case Results with Proven Strategies
At Fried Goldberg LLC, we understand the high stakes involved in truck accident litigation. Whether you’re representing an injured client or seeking insight into mediation strategies, our team is here to help. With over 100 years of combined experience and a nationwide practice, we’ve worked alongside attorneys across the country to maximize case value and secure the best possible outcomes.
If you’re handling a trucking case and need guidance, consider leveraging our resources, from co-counsel opportunities to our nationally recognized legal treatise, Understanding Motor Carrier Claims. Contact us today to discuss how we can support your case and help you deliver justice for your client.
To learn more about this topic, plaintiff’s attorneys can find Drew’s webinar in our Archive.