By: Guy O. Kornblum* and Charles D. Cochran*
Kornblum, Cochran, Erickson & Erickson, LLP
San Francisco and Santa Rosa, California
General Litigation Lawyer
Here are some points to considering mediation as a means of trying to resolve your client’s dispute. They may seem apparent to many, but they are often either separately or collectively overlooked.
1. Are the Parties Really Ready and Interested in Achieving a Fair Settlement?
Mediation works only if the parties really desire to resolve the matter. They must come with a good faith belief that the matter can and should be settled and have a rational and reasonable evaluation of the case. If the plaintiff’s expectations are not supported by the facts of the case as then known, or the defense is looking for a “fire sale”, mediation will be a waste of time and money.
2. Get the Mediation Statement to the Other Side Early.
The first time the adjuster or the person with the purse strings learns about the case cannot be at the mediation. They need to be shown the merits of the case before the mediation happens in order to secure sufficient authority coming in to the mediation. Provide your opponent with a copy of the mediation brief and exhibits at least 3 to 4 weeks before the mediation in order to give the opposition and mediator time to digest your position and evidence. A private letter or mediation brief to the mediator pointing out confidential dynamics (e.g. the Plaintiff is frightened to go to trial) or negative and positive points to the case can be done before the mediation and pre-mediation conference.
3. Candidly Discuss the Costs and Risks of Trial with Your Client.
When compared to the expense of prolonged litigation, mediation is usually for cost effective. From a plaintiff’s perspective, the client can look to a real result, and have use of the settlement funds now, rather than the hope of financial recovery later, while also saving money on pre-trial and trial costs, as well as possible appeal. Litigation costs often surprise clients, particularly if expert testimony is needed. The fees for experts are quite high, usually involving several hundreds of dollars per hour. During the amount of time experts need to prepare, testify at deposition and appear in court, several thousands of dollars in costs may be incurred quickly. Thus, at a mediation, a major factor in considering whether to settle is the future expense of proceeding without settling. For the parties to achieve this, they must be motivated to work toward closure.
4. Find Out What the Other Side Needs to Evaluate the Case and Consider Providing Informally.
So how do you find out if the parties are at the point where settlement discussions would be productive either directly or through a neutral? One way is to have a dialogue with the opposing counsel. That is, ask counsel about his or her view of the case. While opposing counsel may not reveal all, a certain amount of candor is called for. And it does not hurt to inquire: Are you and your client at a point where we can have a meaningful discussion? Who knows, this opening to communication about settlement may lead to direct negotiations (Heaven forbid!), and perhaps even a settlement without a mediator.
If the answer is “No”, find out what is needed to get to a point where a mediation makes sense. Perhaps the parties can agree on a limited discovery plan or exchange of information that will allow each side to evaluate the case.
5. Have the Right Approach in Your Settlement Discussions and at Mediation.
Hostility, anger, finger pointing and accusations are not part of the mediation process. Diplomacy, salesmanship and patience are the bywords. The parties and their lawyers may be firm, tough and even hard-nosed at times, but they need to do it politely and diplomatically. The parties need to be prepared for mediation by having the appropriate attitude before attending the mediation. This is where the client enters the business process of resolving disputes and essentially steps outside of the courtroom. The demeanor of all should be consistent with this “business like” approach to negotiations.
6. If Mediation Does Not Work, Keep the Door Open for Further Discussions.
While a case may not settle at mediation, that is not the end of the road for a potential resolution. A number of cases settle in the weeks following the mediation particularly if you have an experienced mediator that follows up with the parties.
Following mediation, the parties may have gained a different perspective on the case, and reevaluated their positions. That can be a major event or “evaluation changer” which could produce more movement toward a center point.
Also, the mediator will often comment on issues and give his or her views on each side’s case. The mediator may offer the pros and cons of settlement versus proceeding further. This provides an objective, third-party view of the matter, which may be very valuable.
* Mr. Kornblum and Mr. Cochran specialize in civil trials, arbitrations, mediations and appeals. They have offices in San Francisco and Santa Rosa. www.kcehlaw.com. They are both certified in Civil Trial Advocacy by the National Board of Trial Advocacy. Mr. Kornblum is author of “Negotiating and Settling Tort Cases: Reaching the Settlement,” published by Thomson West and the American Association for Justice), 3d. Ed. 2015.