Effective Pre-Mediation Evaluation of the Commercial Case

Effective Pre-Mediation Evaluation of the Commercial Case

by Charles R. Ledbetter and Julie McCurdy Williamson

Careful pre-mediation case analysis is key to a productive mediation. This article discusses important aspects of evaluating the commercial case, arriving at a reasonable range of settlement value, and making a persuasive presentation at the mediation.

“Before everything else, getting ready is the secret to success.”

—Henry Ford

 

Let’s say you have a business dispute that you have decided— or a judge has directed—should be mediated. How do you prepare for such a mediation to improve the chances of a settlement? Your client is not happy about bearing the cost of mediation, but is even less happy about the continued cost of litigation. The client wants to stop the bleeding, but only at something close to what it feels is the “right price.”

Truth be told—there is never just one right price for a settlement. Successful negotiations always result in a range in which the parties can find agreement. From a mediator’s perspective, nothing allows the parties to arrive at that settlement range faster than can- did and realistic case evaluations from all sides. At the same time, nothing causes more problems than unrealistic evaluations. Below are a dozen suggestions to help you prepare for the mediation with a good evaluation of the settlement range for your case.

  1. Think of your client’s BATNA, WATNA, and Range of Reason. Determining settlement value is not an exact mathematical calculation. Nonetheless, in preparing your evaluation, it helps to think in terms of your client’s BATNA (Best Alternative to a Negotiated Agreement) and WATNA (Worst Alternative to a Negotiated Agreement). In other words, if the case goes to trial, what is the best and worst outcome your client can expect? The BATNA and WATNA should take into account not only the litigation risk, but the operational costs (for example, diversion of re- sources) and business exposure (for example, bad publicity) of proceeding to trial. Your analysis will also involve assigning relative weight to the likelihood of the best and worst outcomes. Working between those two scenarios will enable you to arrive at a Range of Reason—a range of numbers at which settlement makes sense.
  2. Prepare your case as if preparing for trial. Although mediation is a less formal method of dispute resolution than a trial, do not approach the process casually. You need a good understanding of the strengths and weaknesses of all sides of the case. Corral your evidence—testimony and documents—and analyze the law with a view to how you plan to try the case.

If you don’t have the information you need to fully understand the case, consider postponing the mediation until you have completed the necessary discovery and legal research. Or, if you don’t have time for formal discovery, try to get the information informally. You can even use the mediator in pre-mediation discussions to try to get what you need from the other side before the mediation.

Coming to the mediation with the key evidence at your finger- tips can help. For example, in a class action mediation, the plain- tiffs’ lead attorney had all of the evidence on his laptop. He had studied the evidence and could pull up any of the key documents and deposition testimony in a matter of seconds. This ability to instantly show important evidence to the mediator and opposing counsel allowed him to recover millions of dollars more than he might have otherwise.

  1. Study the contract. Most commercial disputes involve contractual documents. Contract terms can impact the ease or difficulty of proving liability and can limit or expand the damages recoverable. Surprisingly, counsel often have not carefully   studied the relevant contract provisions. Make sure your case evaluation takes into account special contract terms and conditions, such as notice and waiver, warranties, limitation of liability, liquidated dam- ages, limitation of damages, exhaustion of remedies, choice of law, choice of forum, arbitration, waiver of a jury, and right to recover attorney and expert witness fees. Some terms, such as fee- and cost-shifting provisions, can really hurt your client if the client litigates and loses. The risk of your client having to pay not only its own fees and costs but those of the other side should not be ignored.
  2. Objectively assess the witnesses and evidence. After you have organized the evidence, take a step back and consider the case from the perspective of a neutral decision maker hearing the facts for the first time. Don’t look at just the positive aspects of your case; take into account the strengths of the other side’s case and the weak- nesses of your own. If you are on the defense side and you know the plaintiff makes a great witness, include that in your evaluation. If your client did stupid things, address those, as well. Be sure to deal with the adverse aspects of your case in your mediation statement. A statement that addresses both the good and the bad parts of your case builds credibility with the mediator and, more important, gives you a better evaluation for your client to consider before rolling the dice at trial.
  3. Analyze recoverable damages. A number of factors can limit or expand recoverable damages. For example, the contract itself may provide for liquidated damages and/or exclude the right to re- cover lost profits and other consequential damages. Lack of evidence may make damages difficult to quantify. The claims alleged, such as statutory violations, fraud, theft of trade secrets, and civil conspiracy, may also be important if they allow for recovery of attorney fees or punitive or treble damages. Such claims may also present different risk factors, such as joint and several liability among the wrongdoers and admissibility of evidence from co-conspirators.
  4. Use jury verdict research. The locale where your court case is pending can have a huge impact on its value. Many jurisdictions have reasonably priced jury verdict reporter services, such as Jury Verdict Reporter of Colorado, where you can obtain similar case verdicts by venue. This information can lend credibility to your evaluation or discredit that of the other side. Of course, every case is different, but sometimes this information can be useful to reinforce the risk of going to trial in a given jurisdiction.
  5. Consult experts if necessary. Reliable case valuation may re- quire information from one or more experts. For example, for an environmental case, you may need expert input on such issues as contamination, causation of injuries, and costs of remediation. For a contract dispute, you may require an expert to calculate lost prof- its, appraise a property, or value a business. While damages in some cases are easily calculable, an expert can often provide assurance that you have captured all available damages and establish that your damages are more than “pie in the sky.” If expert disclosures have not occurred before the mediation, you can nonetheless share the expert’s analysis with the mediator and decide whether to give the mediator permission to share it with the other side. If the case is expert-driven, consider having the expert attend the mediation in person or via Skype to make key points or counter opposing expert views. Experts can also help create summary charts and other demonstrative exhibits to convey information persuasively to the mediator and the other side.
  6. Consider insurance and other resources. The collectability of a potential judgment is always important in setting settlement value. The availability of insurance and applicable policy limits may be key. The amount of a defendant’s own assets also may be significant; don’t assume the financial stability of the opposing party. Legitimately obtaining financial information on most companies is relatively easy in our information society. Services or programs such as Westlaw’s Investigator’s Tool or TLO may provide useful information beyond the credit bureau reports. In addition, consider whether the defendant has other sources of funds, such as family members, off-shore trusts, or affiliated entities. These funds may be available to pay an agreed-upon settlement, but may be difficult or impossible for a judgment creditor to reach. If the financial stability of your client and/or a possible bankruptcy filing could be a factor in settlement, you may want to be prepared to provide certified financials at the mediation to prove your point.
  7. Think about the decision makers at trial. A complex business dispute pending before an arbitrator with subject matter expertise may well be valued differently than one to be heard by a jury or by a judge with little commercial experience. The particular judge assigned to the case may also impact the settlement value, so gathering information about the judge’s background and propensities can be useful.

The forum can also impact the cost of continued litigation. If you are in arbitration, the case may or may not be cheaper to prosecute or defend. Also, if trial is in an out-of-state venue, you will need to factor in travel and lodging costs and the cost of hiring local counsel. Include these considerations in your mediation thinking and litigation budget.

  1. Consider the impact of critical motions. Frequently, resolution of one or more pending motions can significantly change the case evaluation. In fact, some litigators file motions for summary judgment or motions in limine shortly before the mediation to gain leverage. Consider whether you want to know the ruling on those motions before the mediation. In some cases, uncertainty as to how the court or arbitrator will rule makes settlement more likely. How- ever, if the parties are not willing to factor the odds of winning or losing the motions into the evaluation calculus, you may need to postpone mediation until you know the outcome. If you think pending motions provide a significant bargaining chip, be prepared to argue the law and have copies of key cases for the other side.
  2. Calculate the cost of continued litigation. Litigation budgets, although torturous to prepare, are useful tools to inform your client of the potential financial cost of not settling. Many cases settle partly or wholly because the cost to pursue or defend them is just too high. Spend the time to prepare a thoughtful and detailed budget (with appropriate caveats for unexpected events) of what it will cost to try the case, including post-trial motions. Knowing this information will not only help the mediation process but may also enhance your client relationship. No client likes to be hit with un- expected legal expenses as trial approaches.
  3. Understand the drivers toward and the obstacles to settlement. Figure out what other interests or concerns are driving the parties to settlement or, alternatively, are standing in the way of settlement. For example, if the defendant is subject to multiple law- suits, would settlement enable it to avoid the precedential value of an adverse judgment? For example, is settlement desirable because an adverse finding at trial on a fraud claim would endanger the defendant’s ability to enter into government contracts or obtain financing? On the other hand, does the defendant face professional consequences if it settles (for example, required reporting) that would be avoided if the defendant won at trial?

As part of your analysis, consider the identity of the person(s) who control settlement for each side. For example, a corporate executive who implemented the business practice that caused the lawsuit may be concerned about losing face or status within the corporation if settlement is seen as admitting wrongdoing. Similarly, the plaintiff may have such anger toward the defendant that it is emotionally hard for the plaintiff to accept any settlement other than complete capitulation. All of these factors, while not measurable mathematically, can impact the reasonable settlement range of a given case.

Conclusion

Once you have done all this work, don’t forget to share your assessment of the case with the client before the mediation. Give your client the opportunity to carefully read your pre-mediation statement before you send it to the mediator. If your pre-mediation evaluation is significantly different from one previously given to the client, explain the differences. The mediation itself is not the time to surprise the client with unexpected news. If the client doubts your assessment, ask the mediator to address, and hopefully support, the new evaluation. At the same time, emphasize to the client that your valuation range is not set in stone and that some flexibility will likely be needed to get a deal done. As the mediation progresses, you and your client will need to continually reassess the client’s position, particularly if it becomes apparent that some additional movement will put an end to the dispute.

Whatever your evaluation of the case, try to be compassionate and considerate of those on the other side. In a recent products liability case, in-house counsel for a major automobile manufacturer started the mediation by asking to meet with the plaintiffs, who had been badly burned in an accident. He told them how sorry he was they had been injured so terribly. He said that the only thing that his company could offer at this point was money and he wanted to explain that before the negotiations began. This simple gesture of compassion and empathy allowed his company to settle the case that day for a reasonable sum, while other defendants did not. Expressing genuine understanding of and sympathy for the other side’s situation can go a long way.

You can now head into your mediation secure in the knowledge that you are thoroughly prepared. Hope that the other side has done its homework, as well. Let the discussions begin.

Reproduced by permission. © 2015 Colorado Bar Association 44 The Colorado Lawyer 35 (June 2015). All rights reserved.

 

What mediators really want to hear

Three veteran mediators tell what you should do and say to put your best foot forward in negotiations.

Mediation is a very different setting from trial. Instead of a judge or jury, you must persuade a mediator–as well as your opponent–to reach a settlement.

So how should you approach a mediation? What really persuades a mediator? What demonstrative evidence should you use? What mistakes are sure to derail your negotiations?

To answer these questions, TRIAL brought together three respected mediators to discuss their “dos and don’ts” for trial lawyers. Judith Meyer, a former litigator and now a mediator and arbitrator with JAMS in Philadelphia, served as moderator of the discussion. John Leo Wagner, a former federal magistrate judge, is now affiliated with Judicate West in Los Angeles. Joe Epstein, a former trial lawyer, is a mediator with Conflict Resolution Services in Greenwood Village, Colorado. Here they discuss how you can present your most persuasive case in mediation.

Meyer: Going into a mediation session, what really helps a mediator?

Wagner: What helps me is getting information from the lawyers before mediation, ordinarily in the form of a brief. I generally also ask for a confidential memo of things they want to tell me but don’t want to tell the other side. And when I can do it, I push for premediation conference calls with each lawyer.

It’s helpful to get a fix on where the emotional content lies. Who’s angry at whom?

Epstein: Preparation–by the parties and by me–is key. I try to start out with an e-mail to all the parties, asking for a thumbnail sketch of the case, who they think should be present, and any key issues that might affect my thinking about the case and how to design the mediation. Then I call the parties individually and, using the information they’ve given me, work with them to design the mediation. Sometimes I set up conference calls with all the parties. For example, I did a multiday mediation in Salt Lake City that was a multiparty case. It required meeting in advance with each party for a couple of days and then having meetings that adverse parties attended together.

If we’re lucky, the parties submit confidential mediation statements that I also use to help design the mediation. I ask people to send those a week in advance, but sometimes they don’t come until just a few days before the mediation, and that’s too late to be of help in designing the mediation.

In some communities, a mediation statement is confidential and is given only to the mediator. In other communities, there’s a more open practice of making it available to the other side. I have developed the practice of recommending that each party provide a mediation statement to the opposing party and give me only those things that they prefer not to share, so there are fewer surprises at the mediation.

Meyer: I, too, start with individual private calls–I refer to them as separate caucus calls or private caucus calls–with the lawyers. I sometimes meet with each lawyer and his or her client, and sometimes I meet with the client alone if the lawyer wants that, just to get a feel for who the players are and what they expect from a mediation. I ask the parties to exchange anything they want to exchange with each other, but anything they don’t want to exchange is kept confidential.

In their confidential mediation statement, I want them to tell me what they think both sides’ impediments to settlement are; what they think the other side’s goals are; what they would like to accomplish, not a bottom-line statement, but their general goals; and how they think we can all get there.

I want to know whom they want to talk to. If the defendant is a corporation, it’s rarely possible to have a CEO attend the mediation, but if the plaintiff wants the CEO there, the defendant has to make some effort to show the plaintiff that they understand this and that they will send an appropriate substitute. And of course, a person who’s a “hot button” for one side should probably not be part of the joint sessions.

In one multiparty construction case I handled, the lawyers asked that I meet with their experts before any of us got together so that I fully understood each side’s position.

Wagner: We often do that in environmental cases, either that or have a premediation meeting between the experts. They may not agree on the various technical issues involved, but at least they get an opportunity to hear where the other side’s expert is coming from.

Meyer: What materials should the advocate bring to the mediation? What should he or she provide to the mediator (or other side) beforehand?

Epstein: I have seen a lot of PowerPoint presentations. In my general experience it’s a mistake for either party to wait until the mediation to provide these to the other side, because frequently the decision-maker is a CEO or other high-level employee who does not appear at the mediation. However, having said that, I have seen very powerful presentations in insurance bad-faith cases.

I think the most effective demonstrative exhibit at a mediation is the party or the parties, particularly in personal injury cases. I encourage the attorneys to step back and let their client be the spokesperson. I encourage them to prepare their client for the mediation and let him or her influence the opposing client.

Wagner: It’s helpful, particularly in personal injury cases, if the parties provide information regarding attorney fees and liens that will be paid out of the settlement funds, because these often factor into the settlement equation. Also, they should bring recent court rulings that aren’t included in the brief they’ve submitted to me. If they are relying on a particular case, it sometimes helps to bring a printout of the ruling with important points highlighted.

I agree with Joe on the PowerPoint presentations. In the mediation of a case in Nevada involving high-dollar electrical power contracts, the plaintiff attorneys absolutely insisted on a long PowerPoint presentation the first day. It took me another 12 days of mediation to undo the damage that was done.

Elected members from the defendant electrical power authority board attended and were offended by the content, tone, and length of the presentation. They thought less of me for permitting it and were angry with their lawyers because they did not have a similarly aggressive presentation. They felt persecuted, misunderstood, poorly represented, and abused.

They became dead-set against any settlement and communicated their position in no uncertain terms to the remainder of the board. The offended board members refused to participate further, and different members attended the following mediation sessions. Those not personally exposed to the PowerPoint presentation were persuaded to support the concept of settlement. But because it was an election year in the company and the presentation had already poisoned the well, the mere “willingness to settle” became a political issue, even without any specifics as to what the settlement would or could be.

So, I learned the hard way that even a well-done PowerPoint presentation can be the kiss of death. It takes up a lot of time, and it’s likely to raise the emotional content in the case. Besides, many presentations are not interesting or well done. They are usually boring and pedantic–and that’s the real reason people resist sitting through them.

Despite their drawbacks, I have also seen PowerPoint presentations work fairly effectively. If someone says they have a PowerPoint presentation, I encourage them to provide it to me in advance. I screen it, and if there is some value to it, I usually recommend that they provide it to the other side in advance. This avoids needlessly expending precious mediation time and unnecessarily inflaming the parties’ emotions.

Meyer: That leads to an obvious next question: Do you give people a schedule of presentations in advance so that one party doesn’t go on for eight hours?

Wagner: I usually put time limits on any presentations. Of course, the initial inquiry is whether we are going to allow presentations at all. In recent years, I’ve stopped doing opening sessions where the parties lay out their entire case. I now usually conduct joint sessions only later in the mediation process when they can be focused on specific issues.

Epstein: That’s the route I’ve gone as well. If I haven’t met with the parties in advance, I have a cup of coffee with each of them at a private caucus at the beginning of the day. Then I focus my general joint session on key issues. I may suggest that they bring an expert along to discuss a key issue, but I suggest limiting the time for each expert.

Meyer: It’s always useful for a personal injury attorney to bring in a day-in-the-life video, especially if it’s a wrongful death case. There’s one attorney in Philadelphia who does that routinely, and those are generally very powerful. It’s a preview of evidence to come if the case goes to a jury. With evidentiary materials, I’d rather have more than less–not that it all will be presented, but the materials are there if needed.

It’s always useful for advocates to highlight materials if they are going to provide them to the mediator or to the other side. There’s nothing like looking at a 20-page document and wondering just where the relevant paragraph might be.

Meyer: What else should the advocate be sure to do to prepare for each mediation session?

Wagner: The first thing is, get your own house in order. When several lawyers represent one party, they should decide who’s going to be the lead counsel. Who’s going to be the good cop, and who’s going to be the bad cop? Who’s going to provide information, and who’s going to make the legal arguments?

Once the lawyers have their game plan down, then they need to coordinate with the client and make sure the client is integrated. If the clients need to be buffered, they need to decide how that buffering process is going to take place and who’s going to do it, and coach the clients so they know how to take cover during the mediation if they need to.

The lawyers need to evaluate the mediator. Is the person a weak or strong mediator? Is he or she overbearing? Lawyers must modify their tactics to accommodate the type of mediator they have. For example, if the mediator is a sitting federal judge who is determined to get the case settled at the expense of your client, it is imperative that you make him or her go through you to communicate with your client and that the client not be left alone with the judge in a room. You act as the buffer between the overbearing judge and your client.

If you have an obstinate client and a talented private mediator, you may want to arrange for a private session between them, so that the mediator can put the client through a “reality session.” If you have a weak mediator who is about to let a desired settlement crater, you may want to meet privately with him or her and give suggestions as to what to try next.

Epstein: One thing lawyers need to do beforehand is to try to imagine what the opponent’s expectations are, what their frame of reference is, what they might be feeling. They also need to consider the spiritual component that exists in the case and how that may or may not be addressed in the mediation, particularly in wrongful death, employment, and catastrophic injury cases.

Meyer: Do you think most lawyers are comfortable with the spiritual component in mediation?

Epstein: Many lawyers do not address this component of the case. I imagine that some don’t do so because it makes them uncomfortable, while others don’t think it’s necessary. In any event, when I feel it is appropriate, I do so in a direct or an indirect fashion.

In a wrongful death case involving a Cherokee woman, I was able to reach her in a different way because of my background with Native American tradition. I let her give voice to her grief, shared in the moment with her, putting the case aside for a moment, letting her process her grief during a caucus.

When a person becomes a paraplegic or quadriplegic, there’s a real loss of self. How do we touch that? How do we acknowledge that? You don’t always have to verbalize that acknowledgement. It can be felt. I think people can feel other people’s compassion.

As a plaintiff attorney, I used to feel that I gave a part of myself for each of my clients. I’m willing to do that even now, and to me that’s part of what mediation is about. I’ve decided that I’m willing to talk about this component of mediation and not worry about people’s reactions.

Meyer: I think that takes courage. I always hope that counsel will prepare for mediation by reminding themselves to view the process as a joint problem requiring a solution and not a competition to win or lose.

I hope they remember to be respectful and civil, even when they are provoked. I want them to be able to say that they won’t necessarily use every legal argument available to them, because they’ve come with the intention of putting their best efforts into reaching a settlement. I want them to understand that although they are crafting a settlement in the shadow of the law, the legal positions will just be wallpaper in the background. I want them to expect the other side to be as pragmatic and forthcoming as they hope to be.

Wagner: This whole discussion assumes that the objective of the mediation is to settle the case, but that’s not always true. Sometimes the objective is to use the mediation for other tactical or strategic purposes. Advocates should think and talk with their client in advance about what the objective is–what are they trying to accomplish? And I think it’s smart for the advocate to share that with the mediator, because you can have a mediator really trying to get something settled when it’s pretty clear that the objective is not to settle the case.

Epstein: In catastrophic injury cases, sometimes the defense will want to gather some discovery, while the plaintiffs are geared up to resolve the case. When parties come with different expectations, cases don’t resolve and it becomes very difficult to get the parties back to the negotiating table.

Meyer: Right now I’m in the middle of an employment mediation where the money issues have been settled but the corporate culture issues have not. The corporation is falling more and more silent, stonewalling at this point, and I’m not sure they came in with the intention of seriously looking at their corporate culture through the eyes of a suffering employee. The employee and her attorney are becoming angrier rather than calmer.

Wagner: I always ask during the premediation process and early in the mediation: What is the objective? What are you here to do? What are your expectations? What do you want to accomplish? The defense may say, “We want to do some initial exploration, but we don’t really think it’s going to settle at this stage. We want to establish a line of communication, do a little discovery, and start learning about the case from the plaintiff.” But then the plaintiff says, “We want to get it done today.” Your job is fairly clear at that point–you have to start reducing the plaintiff’s expectations. Maybe you give them an early out or an option not to do the mediation at that point. I think you have to do damage control.

Epstein: That is why premediation discussions with the parties are so important. If we can ascertain the parties’ expectations in advance, we may realize we first need to get the parties on the same page regarding their goals.

Meyer: Do you find demonstrative evidence helpful in mediation sessions? What kinds of demonstrative evidence might you encourage and what kinds might you discourage?

Wagner: I like photographs and chronologies. These help me get a better grasp of the facts.

Epstein: I agree.

Meyer: If contracts are involved, I like to have them made available to all parties, with the sections that each party is relying on highlighted. Also, bring and highlight any memos or e-mails that are going to be discussed.

If the parties say, “We haven’t produced this in discovery,” I say, “Well, if it’s the kind of thing that will be produced in discovery eventually, why wait? Why not produce it now if you’re serious about resolving your case?”

Meyer: How should the advocates begin the negotiation? Should they wait for the mediator to set the protocol? Who should make the first offer? How do you get the process rolling?

Epstein: I think a lot depends on what type of case it is and whether there was any negotiation outside of the mediation session.

Generally, I recommend that plaintiffs make a demand before the mediation, especially in large personal injury cases. In other cases, they may want to wait until the mediation and listen to the other side before making their demand. In insurance-based cases, I suggest that the larger the case, the sooner the plaintiffs should make their demand package available to the other side, because it has to go up through different layers of authority. Also, the amount of the demand may affect who has to come to the mediation because of different levels of coverage.

Wagner: When I was on the bench, I experimented with different approaches. I would order the parties to exchange a demand and preliminary offer before the mediation session. The parties sometimes used these for tactical purposes. For example, a plaintiff might make a large demand that was unreasonable in the context of the case, and then the defense would use that as an excuse to try to scuttle the mediation effort. Other times the plaintiff might make a good-faith offer that was so low the defense would crawl all over it. If I can, I coach the parties on the numbers in advance. They need a place to start, and the initial numbers that get thrown out generally don’t have much credibility anyway.

I want to know what has happened between the parties before the mediation. I want to know what numbers have been informally discussed over coffee. I want to know about any loose talk, such as, “If you would do this, maybe I can get my client to do that.”

Epstein: Here are some questions I ask people, after we’ve had some time together at the mediation. To an adjuster who’s never met the plaintiff before, my first questions are, “What have you learned here today? What’s your reaction to the plaintiff? How does that affect your evaluation?” When the defendant gives me a settlement number, I frequently ask, “What message do you think that number sends? What do you think is being telegraphed to you by the number being demanded of you?”

Not that I don’t coach and suggest settlement figures, but I like to make the parties work at it–it’s their negotiation, not mine.

Meyer: What advice can you give advocates about what to do–or not do–in mediation?

Wagner: I tell them not to be a one-trick pony. Some lawyers’ one tactic is to walk out of the room–in one day, they’ll walk out 20 times. Or there are the ones who keep announcing that we’ve reached their client’s bottom line. You’ll go through 25 bottom lines during the course of the day. I just don’t think those are very effective tactics. So when I see someone getting into one of those counterproductive grooves, I talk about one-trick ponies. Some people know how to negotiate only one way, but it helps to be more flexible.

I think the primary thing that advocates need to do is evaluate the mediator. Find out what kind of mediator they have and ask, “What are your ground rules?” Some mediators will say, “I tell the other side everything unless you tell me not to.” Others will say, “Everything is confidential unless you give me permission to convey it.”

Also, is there a pipeline back to the trial judge or somebody else? Are things that happen in mediation going to be reported to anybody? Is the mediator willing to talk directly to the trial judge? Some are and some aren’t. That can be a problem or an opportunity.

Epstein: First, you have to show respect for your opponent, the mediator, the mediation process, and your own client. A negotiator also has to be prepared to be patient throughout what may be a tedious process. The process is really important to clients, particularly to someone who’s not sophisticated in the world of mediation, someone who’s not been there before or would prefer not to be there, such as the employee in an employment case.

I think it’s also important for parties to think about how they can give recognition to underlying issues, things it would be difficult to assign a dollar value to.

Meyer: Here’s my short list of worst practices: Refuse to bring the client. Don’t tell the client what the process is about when you bring them. When you bring the client, don’t let him or her speak. Refuse to allow the client to speak to the opposing client. Refuse to allow the mediator to speak to the client. (I had one mediation in which the plaintiff was the widow of a man who died in a plane crash, and I was told, “You may not approach her or speak to her.” She could not engage in any of the negotiation. That lawsuit did not settle.)

More ways to sabotage a mediation: Continually allude to your ability to win at trial and your eagerness to do it. Schedule the mediation for a full day and then announce after an hour that you have to leave in two hours. Insult your opposing counsel–that’s always a wonderful tactic. Arrive at the mediation without having thought through what you want. Arrive either without a necessary person or with an obstructive person whose presence is not necessary or is inflammatory.

Meyer: What approaches have you found particularly persuasive? What tactics have you seen advocates use that have backfired? And finally, what role should the client play?

Wagner: I think the low-key approach generally works best, where you have strong advocacy presented in a nonaggressive way. It seems to me that the most experienced mediation advocates adopt that approach.

PowerPoint presentations and day-in-the-life films can backfire, particularly if the party brings it the day of the mediation and insists that it be played there. It really needs to be done in advance.

The role of the client depends on the client. The general counsel of a Fortune 500 company probably will take an active part and will be the main negotiator. An illiterate widow of a railroad worker may take more of a back-seat role.

One of the things that consistently works is candid and frequent communication with the mediator. I like the advocate who comes in and says: This is my case. These are my strong points. These are the problems I have with the case. This is where I’m willing to go. We’re approaching it flexibly, but at this point, this is what we’re thinking. Chances are that lawyer’s clients will get the result they were hoping for.

Epstein: I have three stories to tell you. One was an impasse in a medical malpractice case involving failure to diagnose breast cancer. That failure substantially increased the patient’s likelihood of death. She had been a patient of the defendant physician for years.

When we reached an impasse, I put the parties together without lawyers. With everyone’s consent, the physician, the patient, and I met alone, and as the physician turned to the patient, she said, “I’m sorry” and started to cry. The patient started to cry, and said, “That’s all I wanted to hear.” They hugged each other, and it brought me almost to tears. The impasse was broken and the case settled.

Let me mention another one–a wrongful death case involving a very young child. The parents took the child to the emergency room several times, but the rural health care facility kept sending the child home, saying, “Don’t worry, it’s just the flu.” Ultimately, the child became so dehydrated that the personnel at the health care facility couldn’t establish an intravenous line. By the time they got the child from that facility to a larger one, the child died. This happened in a small rural town where people know each other. The hospital staff as well as the parents and the community were all devastated.

At the mediation, my strategy was to put the hospital administrator and the parents in a room together with their attorneys and me. After several sessions, the hospital agreed to design a risk-management program to prevent similar incidents, to provide counseling for the family, and to provide financial remuneration for the wrongful death.

The last story involves an RV fire. Some of the plaintiffs–members of an extended family–were trapped inside a burning RV while other members of the family stood helplessly outside. I met with the plaintiffs before the mediation and discovered that they wanted an opportunity to tell their story to the insurance adjusters and defense attorneys who had not heard from them.

They told the story, which was incredibly dramatic. Can you imagine being inside an RV, knowing that it’s burning and that you are likely to die if you stay put, but that the only way to get out is to go through the fire? Well, with the telling of the story, this case settled.

I believe it’s important for the plaintiffs in catastrophic injury cases to tell their stories because that’s the most important evidence. And if an adjuster has not met the plaintiff, he or she has not had the opportunity to evaluate how a jury will react to the story. As Annette Simmons says in her book The Story Factor, it’s the story, not data, that counts. ?