We are all formed of frailty and error; let us pardon reciprocally each other’s folly – that is the first law of nature.
— François Marie Arouet (pen name Voltaire), “Tolerance,” The Philosophical Dictionary (1764)
Here are some suggestions for making the most out of your opportunity to resolve your case in mediation:
- Be prepared for the mediation. Understand both your case and that of your opponent. Know the law that governs your claims or your defenses, and be able to articulate the elements of the claim or defense and the elements of the damages at issue.
- If you are representing the plaintiff in a claim for which there is liability insurance coverage, make sure that you have submitted supporting materials, such as medical bills and records and lost wages documentation, sufficiently in advance of the mediation to permit the insurance company to make a realistic assessment of the claim through its normal claims process.
- Conduct sufficient discovery to enable you to form an educated opinion of the worth of the case, and be prepared to document that opinion for the other side. Be sure to allow enough time to permit any experts, including physicians, appraisers, engineers, accountants, or others, to have completed their work and submit documentation of it in time to share with your opponent in advance of the mediation. Surprising your opponent with such material at the mediation is generally ineffective and may even be counterproductive.
- If you represent a corporate party or governmental entity, arrange for settlement authority before the mediation, and insure that someone with meaningful authority will attend in person.
- Consider providing the mediator with a confidential – and candid – case summary prior to the mediation (preferably not on the eve of the conference), particularly if the case is complex factually or legally. Summaries that merely repeat allegations in the pleadings are not helpful; those that realistically address weaknesses as well as strengths will enable the mediator to be better positioned to help you settle your case. If you have a recalcitrant client who is not listening to your advice, and you would like to enlist the mediator’s support in having the client see things realistically, it is helpful to let the mediator know.
- Consider carefully how to make an effective opening presentation. Success at mediation will be achieved more by conciliation than by bluster. A strong presentation, perhaps accompanied by helpful visual aids (but don’t overdo it!), will show that you are fully prepared to try to case if it doesn’t settle. On the other hand, a belligerent, belittling, or inflammatory tone in your opening will not be conducive to settlement. Save the jury speech for the jury, and express a willingness to resolve the case, conceding points that must be conceded. You will gain credibility with the decision-makers on the other side.
- Prepare your client for the mediation. Do not create unrealistic expectations. Your client deserves your candid, professional appraisal of the chances of success and the likelihood of the damage award. Explain the mediation process to the client and the mediator’s role as a neutral who nonetheless will be expected to engage with the parties and will challenge each party’s position. Discuss with the client a settlement range, helping the client separate “wants” from “needs.” If a client says that a certain point is non-negotiable, press the client – ask why it is non-negotiable. Help the client understand that opening with a demand that is likely to be viewed as outrageous or excessive risks alienating the other side and will probably be counter-productive. An opening position that the other side must (with the help of the mediator) concede is in the ball park will likely produce a correspondingly realistic response from the opposing party.
- Address any special needs of the client, such as interpretation services (including sign language) or accommodations for a physical disability. If the client will need the emotional support of a spouse or close friend, ask opposing counsel and the mediator for permission to include them.
- Have the client prepared to pay the client’s share of the mediator’s fee at the conclusion of the mediation, as required by the rules.
- If you are not represented by an attorney, the Dispute Resolution Commission has published a very handy guide that you should review before coming to the mediated settlement conference.
Additionally, here are some wise tips taken from Alternative Dispute Resolution in North Carolina: A New Civil Procedure, E. Manley, ed. (2d ed. 2012), published by the NC Bar Foundation:
- Respect the mediator’s authority to control the conference (i.e., do not try to dominate the proceeding).
- Listen attentively to the other side.
- Avoid use of accusatory or inflammatory language.
- Don’t overreact to the other side’s use of accusatory or inflammatory language.
- Convincingly point out the strengths of the client’s case.
- Gently point out the weaknesses of the opposing party’s case.
- In appropriate cases (i.e., where liability has been admitted), acknowledge in a gentle and conciliatory way the other party’s pain and suffering.
- Encourage the other party to look at the costs and risks involved in trying the case.
- Demonstrate goodwill by indicating some flexibility in the client’s position.
- Make only realistic demands and avoid posturing.
- Think creatively in suggesting options for settlement. Remember that the settlement does not have to approximate what a judge or jury might do with the case. (For example, in a farm nuisance mediation involving noxious odors, the settlement provided for the absentee owner to live on the premises for a portion of the year.)
- Put your cards on the table early. If there is a big weakness in the case and the attorney knows the other side knows, the attorney should mention it in the opening remarks rather than appearing to avoid or hide it.
- Reveal negative information about the opposing party’s cases at mediation rather than holding a “bombshell” for trial. (A mediator will be hindered in the negotiations if critical information is conveyed to the mediator and then he or she is told not to share it.)
- Advocate agreement on less important issues as a way of building momentum.