Wednesday, April 13, 2011

Thoughts on Mediation- 3 "O"s of Success

At some point in your personal injury case, you may have to consider whether to mediate the matter. Mediation can be defined as a voluntary negotiation process by which an impartial neutral assists opposing parties in resolving their dispute. It is designed to be a non-adversarial approach to conflict resolution, where the Mediator facilitates communication between the parties and assists them in finding a mutually agreeable solution. But, what tools do you need to be successful in mediation? I refer to these tools as my three "O's" of clear Objectives, Open-mindedness, and Open discussion.

Objectives. A party cannot go into mediation without clear objectives in mind and expect to reach a settlement. Whether your goal is purely monetary, or something else, that goal should be clear in your mind before you spend the time, energy and money participating in mediation. Here, preparation is the key.

The lawyer and the client should have assembled all the information necessary (i.e. medical records, expert opinions on causation) to assess the value of the case. You will also need to assess the costs of proceeding with the case to trial. Experts are often needed to testify at trial (and they are not cheap) and litigation costs will also include jury fees, court reporter fees, costs of additional depositions, etc. Often, a settlement that is reached earlier rather than later can be better result financially for the parties than a jury's verdict. (For example, from the defense side, paying a little more now, may be "cheaper" in the long run, even if you do better at trial, simply because of greater litigation expenses; conversely, for a plaintiff, taking less now may result in more money in your pocket than a greater verdict, after you factor in the additional costs involved for taking the case to a judgment.)

Also, on the plaintiff's side of the equation, if there are liens that need to be paid out of a settlement (from medical providers or medical insurers), those have to be been fully identified. Further, your lawyer should have been in contact with the adjuster or claims rep. dealing with those liens, to determine if those liens can be reduced and, if so, to what amounts. In the end, we all want to know our "bottom line" and the only way to get there is to know costs need to be covered.

Thus, having the proper sense of your objectives involves proper preparation in terms of knowing "all the angles" to obtain your objectives. Having these fully formed and informed objectives is essential to a meaningful settlement discussion.

Open-mindedness. While having a clear goal in mind in important, you also need to remain open-minded. One of the common mistakes litigants make is coming into the mediation process with a stubborn attitude or a firm "floor" or "ceiling" settlement figure in mind. Mediation, by definition, is a process that requires at least some compromise from both parties. Although most cases that go to mediation do actually settle, it is also true that to be successful at mediation you have to be flexible. If you are the plaintiff, you have to be open-minded to the possibility that you may have to take less than you were initially willing to, or from the defense side, you may have to be open to the possibility of giving up more than you initially wanted. (My more pessimistic colleagues describe a successful mediation as one where both sides walk out grumbling just a little bit.)

Open Discussion. As noted above, proper preparation is key to a successful mediation, and that means having a clear understanding of not only the strengths of your case, but also your weaknesses. To successfully mediate your case, you have to be honest with yourself and with the mediator. Dealing directly with the perceived "weaknesses" in your case when discussing it with the mediator will give you greater credibility with that mediator when he tries to argue the strong points of your case to the other side. This also better equips you to understand the "down-side" to proceeding with the case to trial.

Now, as a lawyer that specializes in litigation (and particularly in my "younger days"), my initial reaction in dealing with opposing counsel was to "play it close to the vest" and not disclose much more than what was absolutely required. However, if you truly desire to reach a settlement, you have to be able to provide enough information to the other side and to the mediator to convince them that you are likely to succeed at trial.

Further, and perhaps more importantly, in the mediation context there are certain confidentiality rules that make such honest and open discussions more palatable. Under Evidence Code § 1119, "all communications, negotiations, or settlement discussions by and between participants in the course of a mediation ... shall remain confidential." Further, in Cassel v. Superior Court (2011) 51 Cal.4th 113, 119 Cal.Rptr.3d 437, the California Supreme Court recently extended mediation confidentiality to preclude the subsequent use of any evidence of "mediation-related" communications and that protection included even include pre-mediation conversations between a lawyer and client. [Cassel, supra, 51 Cal.4th 113, 118, 119 Cal.Rptr.3d 437, 440] Thus, it is far less likely that parties to mediation will be "burned" by disclosures in mediation, since "evidence" discussed in the process cannot be used against them later, should they not actually resolve the matter.

In addition, the concept of being "open-minded" also includes the idea that you have to be able to see the other side's arguments, whether it be on liability, or damages, or a realistic assessment of "what a jury might do" with your case. Thus, being "open-minded" also means that you cannot "take it personally" if some aspect of your case is questioned by the mediator. In the end, the mediator is not your "adversary" and may only just be trying to suggest alternative outcomes to your case that you should be fully aware of when you decide on whether an offer or demand is reasonable.

Conclusion. Not every mediation will be successful, but the odds of reaching a mutually agreeable settlement increase if both sides keep in mind these three principles. If you walk into mediation with these concepts of the "3 O's" in mind, you are much more likely to find yourself walking out of mediation with a settlement agreement in hand.