MEDIATION AND MEDIATORS

I’ve written about settlement mediation before on this blog: http://plaintifftriallawyertips.com/wp-admin/post.php?post=157&action=edit

The entire subject of modern settlement negotiations has been much more complex then when I started the practice. The insurance adjustor would come to the office and negotiate with you. In other cases, you would get a phone call from the defense lawyer who would want to talk settlement. In all but rare situations you negotiated your own cases directly, either with an insurance representative or the defense lawyer.

Now, even the smaller cases are settled through mediation. We have created an entire new field of mediators and mediation companies. The most common issue seems to be finding a “good” mediator. Experience has shown that one lawyer’s idea of a great mediator is not that of some other lawyer. I think there is an inherent problem in our trying to objectively evaluate mediators. That’s not just due to the mediator, but as much the approach and expectations of the lawyer towards mediation.

How, we regard the mediator depends to a large extent upon how we approach mediation and our attitude about the role of the mediator. Therefore, we are not going to be able to objectively evaluate a mediator until we agree on what we are looking for in mediation and in the mediator.

Some lawyers approach a mediation with a willingness to remain until it gets done, who are willing to cooperate with the mediator by giving them a large measure of control and who are chiefly relying upon the mediator to get the job done. These lawyers are looking for a mediator to fulfill that role and if the mediator doesn’t fit that idea the lawyer is likely to be unhappy.

On the other hand, lawyers who see the mediator as essentially having a limited role as a communicator between sides and who retain control of everything from how long they will allow the process to last, to not allowing the mediator to have exchanges with their client to argue the mediator’s view and who are have strong ideas about the process are not going to be happy with a mediator who doesn’t fit that role.

Conceding that we all have, from time to time, cases where we are desperate to settle a case we wish we didn’t have in the office, nevertheless my personal strong belief was the latter approach fit me best. Everyone has their own idea, but for what it’s worth here is mine.

I have long believed that 80% of the progress in a mediation happens in the last 20% of available time. When we do not set firm time limits there is a great likelihood that the mediator will waste time and things will drag out unnecessarily. My position was that mediations should never be scheduled for more than ½ a day. If for some reason there was a genuine reason for a longer session I always wanted it re-scheduled and not extended past the firm deadline.

I also believe the mediator will never have the same skill I have to evaluate my case and am not concerned about his or her idea of the settlement value. What other verdicts have been are also irrelevant to me because I didn’t try those cases and the defense lawyer in those cases wasn’t the same as in my case so there is no way to draw logical conclusions from verdicts in other cases. 

I will never allow the mediator to make an argument to my client about the settlement and strictly control those communications.

I am interested in what the mediator can tell me about the defense position. I am interested in a qualified mediator telling me what they see as the issues in the case but not a jury argument about it. I either agree or don’t agree, but I want to know about any issue I may have overlooked.

I see the chief role of the mediator to communicate between the two sides and I expect the mediator to be able to tell me in a very short time whether there is any reasonable chance of settling the case. If not, I do not stay and waste my time dickering. I will discontinue the processs if there is no likelhood of reaching a settlement in my range.

Clearly some mediators are not qualified for any of our cases and some are qualified for the great majority of our mediations. But. Finding the right mediator for each of us depends a lot upon what we are looking for in the mediator and mediation.

Not to be overlooked are those plaintiff attorneys who avoid mediation except where required by courts or law. They have their own approach. One great plaintiff’s lawyer I know, would make a demand and warn that the amount would go up by a specified sum every week from that point and if not accepted within a minimum specified period before trial would be automatically withdrawn. Defense lawyers who did not believe him soon learned to regret it and his verdict success was outstanding. Yes, there are ethical considerations involved, but the approach is still an alternative for the qualified lawyer.

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