Tips for Lawyers

J. Burton Hunter, III and Associates, PLLC
One West Main Street
Buckhannon, West Virginia 26201
Telephone: (304) 472-7477
Fax: (304) 472-0641

Tips for Lawyers Representing Their Clients in Civil Mediation

• Learn something about mediation by attending one of the many CLE seminars, read a book, or check the web-site.
  
  
• Do what you were taught to do before mediation became prominent, gather all relevant facts, research legal issues, know and prepare your client, and come to mediation prepared.
  
  
• Spend time educating your client on the benefits of mediation, the risks, expenses and agony of the trial.
  
  
• Give great thought to your initial demand or offer. Many mediations fail because of counsels miscalculation at this critical stage.
  
  
• Know something about your mediator and that mediator's experience. For example, if your mediator is an experienced personal injury litigator, do not be afraid to solicit her or his input in your caucus as to the validity of your settlement position, but never forget that the mediator's goal and yours are somewhat different since the mediator's top priority is a settlement, while yours is a " favorable settlement ". This is especially true at the end of the day, but remember that the mediator can be a great ally when you are working with a stubborn, unreasonable, or angry client or opponent.
  
  
• If your client has legitimate grievances. DO NOT HESITATE to cite those grievances and relevant facts and applicable law. Keep in mind, however, that many mediators become impatient at the "fact gathering" stage of their mediation. I am not one of these mediators and will encourage you to elaborate on your client's story. Order and organization are good attributes to have regardless of your mediator's patience. Make sure your presentation is "tight" and effective.  Use technology where appropriate.
  
  
• Bring some food with you. Low carbohydrate bars, candy bars, snack food, etc. Mediations tend to start slowly and drag through lunch or supper. An attorney who can hand out some snack food will win points all around.
  
  
• Prepare your opening statement as you would for a trial. If your mediator loves to caucus, this may be your only real chance to reach the "human being" at the other side of the table. You may have a personality conflict with the other attorney, or that attorney may have reached his or her limits of his/her ability to influence the company that he or she represents. Regrettably, many of the representatives at mediation have "settlement authority" only to pay a pre-determined amount. To the extent that you can, try to figure out a way to get information to the real decision maker waiting at the home office, perhaps a summary exhibit that counsel can fax.
  
  
• If the other side asks if the insurance representative can participate by phone, do not be unreasonable. If you force someone to fly in for a relatively small case, your rapport with that person will not benefit. Instead, consider getting in writing that the person participating by phone will:
  
  
  1. Focus solely on the case at hand;
     
     
  2. Will participate through all proceedings unless everyone agrees, otherwise;
     
     
  3. That the mediation facility will have a good speaker phone; and above all,
     
     
  4. That the person on the phone has unquestioned settlement authority up to your last reasonable demand, and make sure that that figure is contained in your agreement. This can be by an exchange of letters or signed stipulations.
  
  Arguably, it is better for you to have such a person available by phone than to be sitting across the table with a "field level" adjuster who is worried about a flight deadline.
  
  
• Have your exhibits organized and available. You will want to demonstrate that moving on to trial is something that you are fully prepared to do.
  
  
• If you are representing a party with insurance, you should do everything you can to keep the person with "full settlement" authority "in the loop" and fully informed.
  
  
• Give careful thought to how you will help the mediator by:
  
  
  1. Anticipating the other side's arguments and preparing reasonable counter-arguments.
     
     
  2. Where there are issues other than money, think of innovative components of the settlement that others would not likely think of. If you are on the Defendant's side, the offer of a simple apology, the change in a practice or procedure, or a safety improvement at the accident site may have impact on the Plaintiff's position. The number of mediations that hang up at the end on a symbolic and inconsequential point reveals that people want to leave the mediation feeling, "we won". Give some thought as to how the other side can be given this feeling without real detriment to your own client and make sure that your client is filled in on what you are doing.
  
  
• Be innovative, cheerful when appropriate, energetic, and professional.
  
  
• Some mediators prefer to question your client, even initially, directly. Respectfully insist on providing an opening statement on behalf of all but the most unusual clients. Know when to shut up, and make sure that your client knows how to speak for himself or herself.
  
  
• In those instances where the client will almost certainly hurt himself or herself in this regard, you may have to consider explaining it to the mediator in advance, but a client who is utterly unable to make a good impression in a mediation probably should have never become a client. It will now be hard to visualize how that client will do in front of a jury. In such instances, you may wish to bring in lay witness statements or "blown up" sections of deposition transcripts where articulate third parties can make your client's case.
  
  
• Give some thought as to whether anyone other than the parties counsel and insurance representatives should be present. A key expert or video of that expert, "Power Point" presentation, or other innovative presentation may make the difference. A "seven figure" case may justify such efforts when a "five figure" case will not.

IN SUMMARY, an advocate has an obligation to be as effective in a mediation as she orhe is at trial.

Sincerely,

J. Burton Hunter, III