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“In many cases, divulging information last minute is simply
too late to affect the opponent’s settlement position.”
Second, in many cases, divulging information last minute is simply too late to a ect the opponent’s settlement position. For example, in personal in- jury cases, insurers do not have the ability to (or simply do not) react to new information e ciently. It may take weeks before a new item of in- formation or evidence translates into settlement dollars.
ird, early preparation gives you the best chance to be sharp at the me- diation. It takes time to organize and digest case information. It takes time to develop cogent theories of the case. It takes time to formulate bargaining points. You should basically be almost as prepared for mediation as you would be for trial. You should have quick access to deposition transcripts, scene photographs, or other impor- tant data. You will look good in front of the client, project con dence about the case, and send a signal to the other side that you are ready to try the case if necessary. It will also help you shoot down bogus arguments from the oth- er side.
In a World of Suspicion 3 and Cynicism, you Must
Trust the Process.
One of the most common hurdles to getting a case resolved is a lack of trust. One or both sides are concerned that making a certain move will show weakness or jeopardize one’s settle-
ment position. I see a lot of paranoia. e fact is that one must have a cer- tain degree of trust in the process to achieve success at mediation. Sure, on rare occasions, the other side is not acting in good faith and is essentially wasting your time. Other times, the other side hopes to get you to move o of an extreme bargaining position without responding in kind. Once in a while, you get burned. But the best thing about mediation is that you are ultimately in control of what you do. If you get burned, you can always dig in or walk away. Generally, good will is awarded at the end of the day. I have seen it over and over again.
There are no Shortcuts.
accident. A plainti suing a corpo- ration might have a whistle blower lined up to testify at trial who has not yet been identi ed in discovery. Or I sometimes hear about anticipated ex- pert testimony that will blow out the other side’s case, that will not be di- vulged until a er mediation.
It should be obvious that such in- formation is absolutely useless in me- diation if not shared with the other side. If you don’t share the informa- tion, by de nition, it will not impact the other side’s settlement position.
If this is so obvious, why do parties o en hold back information? I o en hear that a party wants to “save” the evidence for trial if the case does not settle. But this is almost always fool- hardy. Given our broad discovery rules and pretrial disclosure require- ments, the chances of pulling o a surprise at trial are slim to none. Plus, as mentioned above, most cases even- tually settle. Statistically, if more than 90 percent of cases settle, the fear of jeopardizing a perceived advantage at trial materializes only one out of 10 times at most. e bene t of conceal- ing information is far outweighed by the bene t of disclosure. I also hear that disclosing information will help the other side’s experts prepare their opinions. So what? Experts o en learn new information on the spot or even a er being deposed and then gure out how to adjust by the time of trial. Usually you want to hear the expert’s view about new information before he or she testi es at trial any- way. In the end, if the information you are “saving” is really devastating, the time to disclose it is now.
Conclusion
Most cases settle, o en at media- tion. Figuring out how to maximize your case outcome is therefore criti- cal. Develop a good relationship with your opponent. Prepare early. Trust the process. Be patient. And tell the other side about anything material that should impact case value. If you follow these important practices, you will put your case in the best position to resolve on favorable terms.
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When I started mediation, I thought about ways to conduct mediation more e ciently. I thought about doing short mediation sessions or doing it through telephonic or video conferencing. But I quickly re- alized that, for the most part, the face- to-face, messy process of mediation is necessary to get the case resolved. ere are at least two reasons for this. First, the parties are always concerned about moving “too fast” in mediation because they don’t want to project fear or a lack of con dence in their case. is can be a problem if a party starts at a particularly unrealistic position. Second, parties o en show up with rm expectations. Adjusting those expectation can be a painful and slow process, requiring one or more parties to proceed through various mental and emotional stages including deni- al, anger, frustration, sometimes grief and eventually acceptance. is takes time and work. It requires patience.
ere are no short cuts.
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Another common mistake I see in mediation is that a party has impor- tant information that it refuses to share with the other side. For example, in a personal injury case, the defense might have sub-rosa video showing the supposedly severely injured plain- ti jumping on a trampoline a er the
AttorneyAtLawMagazine.com
If you Don’t Share it, it
Doesn’t Exist.
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