In earlier articles, I’ve proposed that trial attorneys adopt a “barrister” mindset (i.e. a trial-focused practice that intakes cases that will be tried unless a favorable settlement can be achieved). Such a practice is ethically more responsible than a “settlement mill” that exists primarily for the economic benefit of the lawyer, not the client. After all, if you’re not willing to go to trial, you’re more likely to find any settlement that will make the case go away.
In virtually all civil cases, the Court will order the parties to attend mediation. Barrister mindset or few cases settle at mediation; therefore, even trial-oriented lawyers must develop a philosophy and approach to mediation itself. That begins by not abandoning barrister principles: proper intake, “front-end loading” the case by doing the homework before filing, as well as properly using available discovery tools such as FRCP 30(b)6) depositions and the like. You should remain aggressive, even though mediation has been scheduled. Your opponent should know you mean business. Consider taking the following steps in advance of mediation.
As a certified mediator, I’m surprised how often the parties don’t talk about the numbers before mediation. When the defendant is a large corporation or a governmental entity, settlement negotiations often must be routed through a committee. Well, the other side needs time to consider your demand. Plaintiff attorneys should not expect substantial settlements at mediation without giving the other side a head’s up.
Few cases are perfect and your client needs to understand case problems. In a previous article, “Controlling Client Expectations: A Core Trial Lawyer Skill,” I advocated that most cases deserve some form of focus-group exercise for a reality check on a potential jury’s true reaction. These exercises can prove invaluable for gaining leverage over clients with unrealistic expectations. Jury verdict and settlement reports can also help clients get real. As part of your dialogue, make sure your client knows any costs advanced by the firm will come out of the settlement.
Prior to mediation, you need to decide whether to play it close to the vest or to show your “cards.” If you think your opponent is going to play games with mediation and offer little information, you may want to hold back your trial secrets. By the same token, you need to view mediation as valuable, and not only because it could lead to a settlement, but because it’s an opportunity to conduct “informal discovery” (i.e. learn more about your opponent’s case than you could through interrogatories or depositions). This is art, not science. Also, keep in mind that grandstanding in an opening statement is often counterproductive. It reveals more than necessary.
Too often the parties will reach agreement on the numbers and walk away happy, only to later get bogged down on the terms. Sometimes there are legitimate issues that need to be worked out and may even need to be brought to the judge. Unfortunately, a fight over the terms of the agreement can also be used as a weapon by a client with buyer’s remorse. All of this can be avoided if you pick up the phone and call opposing counsel to send over a draft of the agreement language, just in case. You have a better chance of getting the client to sign while the iron is hot at mediation.
In reality, even barristers settle many, if not most, of their cases. There are only so many hours or weeks or months in a year to try cases. Nonetheless, cases must be prepared for the possibility of trial. That approach shows you mean business. Consider mediation as an opportunity to leverage your hard work and foresight, and perhaps avoid the uncertainty of trial.