An Insiders View of Mediation

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This article originally appeared in Trial Talk February/March 2020 Volume 69 Issue 2 edition.  Reproduced by permission. ©2020 Trial Talk. All rights reserved.  Modified from its original publication in Trial Talk.

 

By Joe Epstein and Chad Atkins

Introduction

Colorado Judicial Department Statistics indicate that 99%of civil district and county court cases settle before a trial or final hearing.¹  Many cases settle at mediation and many more settle due to the forces created at mediation. For those cases that do not settle at mediation, United States Department of Justice studies conclude that mediation was a significant factor in resolving some or all significant issues in 71% of all United States Department of Litigation mediated cases nationwide.²  Based upon our wide and deep experience in evaluating and mediating cases we offer questions for you to answer in enhancing your mediation practice.

This article is designed to help to encourage attorneys to design and time their mediations to have the greatest possible effect in their case management. Decisions made to use treating physicians as experts, engage independent causation/damage experts, engage personal injury finance companies or not are some of the keys to pre-mediation preparation.

What follows are some questions we have framed for your consideration for successful mediations.

  1. What is the role of creativity in mediation?

Mediation should be a creative process for case resolution.  An example of creativity was a case involving a fixed wing aircraft/helicopter crash we recently mediated. The Subrogation Plaintiff did a marvelous recreation of the crash. They displayed it to us Co-Mediators at mediation. We called a joint session so it could be played to the Defendant/Cross Claimant. When an impasse developed, we persuaded the Intervenor/Helicopter pilot to bid against himself to get the personal injury case into a realistic settlement range. After both of these creative moves occurred, both cases settled.

Another example of creativity was displayed in a pre-litigation catastrophic injury case mediation involving a trucking accident. Plaintiff’s counsel had disclosed all available medical records and reports. Yet there was still a gap relating to the current status of Plaintiff’s medical and emotional status. A “meet and greet on steroids” was arranged and the Plaintiff and her sister were interviewed for 45 minutes in open session by the mediator. Given the new information and the manner in which it was conveyed the case rapidly moved to settlement.

  1. When should litigators alert the mediator about special issues?

All parties should alert the mediator to special issues when setting their case for mediation. Special issues include client control issues, difficulty with opposing counsel, coverage issues, lien issues, subrogation, indemnification, additional parties or non-parties to the case, any complication. Addressing these issues pre-mediation through calls with the mediator or an in-person meeting saves time at mediation. In some instances, a site visit or house call may also be necessary.

Pre-mediation meetings are especially useful in high valuation cases. They should always occur where the value exceeds one million dollars.

  1. When should you consider using co-mediators?

Co-mediation is a good idea when you have multi-level litigation. Co-mediators are better with multiple parties possessing differing interests, or where there are counter and cross claims. Co-mediators often possess different, complimentary skill sets. Co-mediators can more effectively manage multiple plaintiffs with inadequate coverage. Co-mediators are also useful where there are multiple insurers. Often, this leads to questions as to which policy is primary and the order of liability, or coverage. Additionally, co-mediation is useful where there are subrogation, indemnity and reservation of rights issues.

  1. What is “Data Dumping” and when is it good, when is it bad?

Data dumping occurs when a litigant discloses irrelevant material and late material. This most often occurs with the documents supporting the mediation statement and with late disclosures on the day of mediation itself.

Limited, relevant and focused attachments that clarify the position advocated are the key to effective mediation statements. Provide the mediator with needle—not the haystack. The needle is the point you want driven home. This helps the mediator appreciate the risks faced by both the plaintiff and defendant. Providing new information of the day of mediation is missed opportunity because the full impact of the disclosure cannot be appreciated and acted upon with sufficient time by opposing counselor decision makers. The mediator cannot be effective in the other room unless the risks are known, well developed and fully considered.

Data dumping is good in pre-litigation and in the early phase of litigation, when the Rule 26 dis closures are being made. Give the other side what they need to see the case the way you see the case. In pre-litigation, the adjuster needs the information to evaluate the risk with enough time to act, set reserves and value the case.

  1. When should you disclose your “good” evidence?

Disclose your best evidence early, before mediation. New information disclosed at mediation usually is lost opportunity. If disclosed at mediation no one can effectively evaluate the information for maximum impact on value. Good evidence creates risk of loss at trial. Evidence which creates risk is most effective when disclosed timely, giving the participants time appreciate the risk, act and reevaluate the case. Disclose good evidence with enough time that opposing counsel and decision makers can act with authority.

  1. When should the initial demand be made?

Demands should be made by Plaintiffs 30 days in advance of most mediations. This requires that there is a disclosure of relevant data and a demand made timely. Make the demand a risk factor in case evaluation for your opponent. Where the demand is made prior to mediation, let the Mediator know the status of negotiations. It is helpful to let the Mediator know your impression of the interests and issues that have prevented reaching agreement. A good axiom is the greater the demand, the greater the time required to evaluate, process, and act on it.

  1. What questions should I ask myself when drafting an effective mediation statement?

The four key questions are: 1) who are my witnesses and what will they testify to at trial; 2) what are the key exhibits and what do they prove; 3) what is the credibility factor matchup between the various plain tiff and defendant witnesses; and 4) what is the negotiation history between the participants? Each of these questions focuses your preparation toward effective communication of your client’s position to your intended audience in a concise and persuasive manner. Answering and addressing these questions is the core of your effective mediation statement.

  1. What should be included in the mediation statement?

Less is not necessarily more, but concise, focused mediation statements that communicate better are more. Bigger cases have better, more concise mediation statements. This is likely because concise, focused statements are harder to write, and many litigants spend more time writing the mediation statement in bigger cases.

Most mediation statements are a chronological statement of medical treatment, and many documents that are related to the case, but not relevant to any issue in dispute. If a matter is not in dispute at mediation, spending much time on it is wasted time.

  1. What are the key questions that you should ask yourself when preparing to mediate?

What is the comparative strength between the parties of causation? It may be helpful to express the answer as a percentage. What is the comparative strength and credibility of the key witnesses and the evidence that each of these witnesses will develop for the litigator? Often, this is a subjective analysis. Do not let that stop you from conducting the analysis and answering the question. What conclusion does the application of common sense point the finder of fact towards? Design a model jury pool that best represents the actual jury pool. Answer these three questions for any disputed issues for yourself, your opponent and for the mediator.

  1. When should the case be set for mediation?

Settings for mediation conferences should be done at least 45 days in advance of the mediation. For maximum effectiveness, prepare the mediation statement and conduct mediation after expert disclosures but before expert depositions. Conducting mediation far enough in advance of trial saves transactional costs.

Consider mediation pre-litigation. This works better if counsel can exchange information freely, and in this instance more is better. Give the other side the information that they need to evaluate the case as you evaluate it. Expect resistance but explain that the mediation will flow faster and have better chance of settling if there are no surprises.

  1. Should you share a version of your mediation statement with opposing counsel?

Sharing a version of your mediation statement is a preferred practice. Sharing a version of your mediation statement avoids surprise and maximizes impact. Sharing a version of your mediation statement avoids “unrealistic expectations” or overly favorable evaluation on all sides. Sharing gives the opposing decision maker the information necessary to effectively evaluate and settle the case.

  1. Should you obtain a draft release in advance of mediation?

Defense should provide a draft release ten days prior to mediation. Plaintiffs should make proposed changes in the Defendant’s release three days before the mediation This enables the mediator to anticipate any issues and also to speed finalization of the settlement. Any issues with the final documents are apparent, open, clearly negotiated. More importantly, this allows focus on the terms that really matter, and avoids terms which are added without negotiation. Having the documents ahead of time avoids this needless and time-consuming impasse.

  1. How can you create risk before and at mediation?

Evaluating and managing risk is the key to resolving legal disputes. As a result, creating risk before the mediation is effective. Taking depositions, visiting sites, reviewing reports, gathering evidence, working with experts all create risk. Good, well timed motions help create risk. Expert Reports help create risk. Outlining and evaluating all of the damage categories in detail help create risk. Concisely state in the mediation statement why your evidence creates risk of an adverse result for the other side at trial. State why the other side has a weaker position. Support these positions with relevant documents. Tell the mediator what the jury will see at trial that will make them find in your favor.

  1. What do you want to get from mediation?

The point of mediation is to settle cases efficiently and cost effectively for maximum value for your side. At mediation, the goal is to close the best deal that you can. Mediation is the best opportunity to craft a certain and final settlement by the parties who know the case best and not leave it to the uncertain ruling of six jurors and an alternate.

Be patient at mediation and let the process work. Rome was not built in a day, and the Roman Empire did not fall overnight. Prepare your client to be patient well before mediation. Impatient clients reduce risk for the other side and are a liability for your search for settlement. Leaving before finding out your opponent’s best number demonstrates a lack of patience and renders the process ineffective.

Conclusion

As Counsel sets up the case file, there is a folder for opening and closing statements. Similarly, there should be a file for mediation. In the mediation file, answer the questions: what is the status of liability, causation and damages? Which party has causation, credibility and common sense on their side? Who are the key trial witnesses and what will they say? What are the key exhibits, and what do these prove? Answer these questions and help the mediator and your opponent understand the case as you do, to find the right settlement value.

Joe Epstein has 25 years as a mediator with over 4000 mediations. He is a four-time selection by Colorado Law Week as Colorado’s “Barrister’s Best Mediator.” He has served as a Vice-President on the International Academy of Mediators. He is a member of the National Academy of Distinguished Neutrals. He is a panelist with AB Conflict Resolution Services. His mediation focus is on complex high value cases. Joe may be reached at 303-359-1459 or joe@crs-adr.com.

Chad Atkins has 25 years as an attorney with more than 100 trials. Chad served as a plaintiff’s and defense attorney for multiple Fortune 100 global insurance carriers and as named Managing Attorney for Colorado for Liberty Mutual/Safeco. This gives Chad a broad perspective for mediation. Chad understands case evaluation from the viewpoint of the litigants, claims adjuster and claims supervisor, with a focus on settlement. Chad can be reached at 303-667-0528 chad@crs-adr.com.

Endnotes:

1 Mediation Guide for Colorado Courts, Colo. Sup. Ct., Draft 4.1 (Oct. 5, 2018).

2 Use and Benefits of ADR by the Department of Justice, Fiscal Year 2017; Overview, U.S. Dept. of Justice (2018).

Colorado Trial Lawyers Association Trial Talk February/March 2020

Ken Plotz recognized to the Colorado Chapter of the National Academy of Distinguished Neutrals for 2020

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We are thrilled to announce that Kenneth M. Plotz has been recognized  to the Colorado Chapter of the National Academy of Distinguished Neutrals for 2020.  Other ADR Services: Discovery Referee, Early Neutral Evaluation, Fact Finding, Mini-Trial Judge, Special Master

After 16 years on the district court bench, Kenneth M. Plotz retired as chief judge of the Eleventh Judicial District in central Colorado in 2005 to become a  mediator and a judge on senior status.

He earned his undergraduate and law degrees from the University of Denver. After stepping off the bench, he completed a master’s degree in Public Affairs from the University of Colorado, Denver. During his tenure on the bench, Judge Plotz presided over bench and jury trials concerning a wide range of cases and actively participated as a settlement judge and was successful in settling numerous domestic, construction defect,  personal injury and business cases.

As chief judge, he instituted a case management system that improved the flow of cases and promoted early resolution of civil, domestic and probate cases. Since joining AB Conflict Resolution Services, he has facilitated settlement in cases concerning business disputes, contractual matters, construction defect cases, employment disputes, probate and personal injury claims.

He has also arbitrated cases involving similar issues, and has served as a hearing officer for public entities concerning employment disputes. In 2009 to 2010 Judge Plotz went to Kathmandu, Nepal where he worked  for the International Legal Foundation, whose mission is to establish public defender systems in post-conflict countries.

For more information, you may view his full biography page HERE.  Or visit our schedule page to inquire about availability.

NADN Kenneth Plotz NADN Ken PLotz

Endurance and Mediation

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This article originally appeared in The Docket August/September 2019 edition.  Reproduced by permission. ©2019 The Docket August/September. All rights reserved.  Modified from its original publication in The Docket.

 

This March I had the luck and the privilege of competing in the Masters World Cup Nordic ski races in Norway.

It was a series of age-group races over a six-day period at a real World Cup venue in Beitostolen, a village three hours north of Oslo that reminded me of what Aspen once was. The races were fun but extremely challenging. The mountains were beautiful and provided lots of long climbs, fast descents, and tricky turns. Although I did well for an American, I spent a lot of time on the course looking at the backs of the Norwegians, Swedes, and Finns.

Those of us who compete in any type of endurance event, whether it is cycling, trail running, or marathons, know there is a lot more to it than just showing up at the start line waiting for the gun to go off.

There is a long period of preparation or training, and there is the necessity of planning.  It recently occurred to me that preparing and competing for events like this is similar to the preparation and process of mediating a case.

 

  1. There is no way to compete or mediate without planning and preparation. In order to effectively mediate, one must obviously prepare by knowing the case and the client’s goals. For lawyers, it is important to plan how you are going to present the case to the mediator so that the mediator has a correct and clear message to present to the other side. As a mediator, I am usually impressed with how well lawyers I work with know the law and facts of their cases. Yet sometimes even the best lawyers fail to convey a clear message through the mediator to the other side. Like preparing advance strategy fora race where you plan when to ease up and when to go hard, planning and timing a clear message for a mediator to deliver to the other side can help the case go forward toward settlement.
  2. When I recall trying to reach the top of a long hill on a 10 kilometer course, it occurs to me that like racing, mediation is not a sprint but an endurance event. Sometimes it gets tiring and often it requires conscious pacing. When we enter mediation, we are in it for the long run. It is not a process where we walk in and say, here’s our position, take it or leave it. Rather, it is a process where everyone gives and takes at a manageable pace.
  3. In any competition or mediation, there are always low points where everyone feels they’ll never finish. This is where the right mindset enters the picture. Someone trying to complete a long race needs to break it down into manageable parts and just try to make it from point A to point B. Those engaged in mediation also may need to just get to one small point, then another, and then yet another where the end is in sight and the success of finishing does not seem so overwhelming.
  4. Technique is important. Even during the hard parts, one tries to maintain form. In the case of mediation, try to keep your cool, maintain your professionalism and don’t pass the feed zone. Seriously, don’t allow yourself or your client to get thirsty or hungry. Take adequate breaks. Get lunch and stay hydrated. It does make a difference in mediation.
  5. In masters racing, there really are no winners and losers. We all get out there to learn something about ourselves and others. In mediation, sometimes cases do not settle. But mediation always presents the opportunity to learn something about ourselves, our clients, and our opponents. Even though a case may not settle as we had hoped, we still learn from the experience.
  6. Competition is really hard. Mediating is really hard. That is why we do it, and that is what we train and prepare for. We would not be there if it were really easy. Just as some of us race long distances on hard courses because we embrace the challenge, some of us mediate because we enjoy the hard work of settling cases and the sense of accomplishment that follows a successful settlement.

One final thought. Sometimes after a long race, I ask myself whether I left anything out there. Did I try my hardest? Could I have done any more? When we finish a mediation, either as a lawyer or a mediator, we should ask ourselves the same questions.

 

Mediating Highly Emotional Cases

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This article originally appeared in Colorado Lawyer July 2018.  Reproduced by permission. ©2018 Colorado Bar Association Colorado Lawyer (July 2018). All rights reserved.  Modified from it’s original publication in Colorado Lawyer.

Mediating highly emotional cases presents particular challenges.
This article discusses effective strategies for managing those challenges.

By Joe Epstein Esq. and Julie M. Williamson, Esq.

Many cases give rise to intense emotions in mediation. With reference to words of wisdom from a wide range of sources, this article addresses strategies that counsel can use to mediate emotionally charged cases.

Emotions at Mediation

There is a sacredness in tears. They are not the mark of weakness, but of power. They speak more eloquently than ten thousand tongues. They are the messengers of overwhelming grief, of deep contrition, and of unspeakable love. —Washington Irving

Mediation involves many types of cases that can evoke strong emotions. Family law disputes are an obvious example. Catastrophic personal injury cases may include life-altering injuries such as quadriplegia, paraplegia, burns, traumatic brain injuries, and amputations, as well as wrongful death claims. Probate cases may trigger not only grief for the loss of the deceased but also powerful memories of deep family wounds. Professional malpractice cases implicate both harm to the plaintiff and threats to the defendant’s livelihood and competency. Employment cases based on sexual harassment, Americans with Disabilities Act violations, age discrimination, or retaliation may raise strong feelings of anger and disrespect. Commercial disputes involving business dissolution’s, breach of long-term relationships, or allegations of fraud can also become highly emotional.

Mediation often takes place years after the events that gave rise to a lawsuit and long after a case was filed. But because parties have the renewed chance to tell their entire story to the mediator, the mediation session often involves unearthing past wrongs and reliving trauma. Negative emotions—whether grief, anger, sadness, betrayal, loss, disillusionment, fear, or insult—can be raw. Yet mediation can also add positive emotions to the equation—relief, a measure of closure, freedom from litigation, even forgiveness and reconciliation.

Grief, anger, and fear are the three emotions most widely and deeply displayed at mediation.1 Grief is almost always involved, whether parties grieve the death of a loved one, the end of an important business relationship, the loss of physical or financial capabilities, or other life disappointment. Anger can erupt from either the underlying wrong or from frustration at the opposition’s perceived inflexibility. Whatever the cause, anger, described by Seneca in the first century as “short madness,” can temporarily blind both clients and attorneys. And fear of change, the future, or even the finality of a settlement can impede resolution. Mediators, advocates, parties, and negotiators must be aware of these emotions and wisely gauge and address their impact before and during mediation.

Select the Right Mediator

Look at situations from all angles, and you will become more open. —Dalai Lama

Not all mediators are alike. It is important to examine the legal and emotional issues that are part of the case. Determine which mediator has the life experience, mediation experience, and legal experience the case requires. Choose a mediator who will infuse the process with a sense of calm optimism and understand and work the case as hard and skillfully as required. Hire the mediator who will look at all aspects of the case, listen objectively and compassionately to all parties, and stay open to disparate information. Find a mediator who approaches parties with clarity, compassion, empathy, patience, and insight. Select one who can lead with humility, measured confidence, and intuition based on experience, wisdom, and mindfulness.

There are many ways to find the right mediator. Professional colleagues are an important source of information about potential mediators, but don’t confine yourself to a particular mediation organization out of habit. Instead, think about what your case needs in terms of the mediator’s background, experience, technical and legal knowledge, and temperament. In addition, many lists of potential mediators are readily available. ADR organizations, such as The Mediation Association of Colorado and Mediate.com, maintain online directories with biographical information, and The Colorado Legal Directory lists attorneys whose fields of practice include ADR.

Once you have a list of potential mediators, conduct an Internet search to investigate the mediators’ background and experience. Also, feel free to call potential mediators and interview them ahead of time; there is no ethical rule against ex parte contact with mediators. Ask them about their experience, technical background, billing rates and structures, available facilities, and approach to mediation. They also should be able to provide you with names of other lawyers whom you can contact for a reference, if needed.

Structure the Mediation to Fit the Case

If you don’t know where you are going, you’ll end up someplace else. —Yogi Berra

Counsel should work with the mediator to individualize the mediation process to fit the unique dynamics of the emotional case. One helpful strategy to achieve this is for counsel and their mediator to address, before the mediation, questions such as:

  • How many parties/teams are there on each side of the case?
  • Who is coming to the mediation on each team?
  • Would pre-mediation meetings with the mediator be helpful?
  • Has the case been mediated before?
  • What is the magnitude of the injuries, damages, and losses?
  • Who needs to give voice to their thoughts and feelings?
  • Who needs to be heard by others?
  • What should the structure of the mediation look like?
  • What preparation do my client, my opponent, and my mediator require?

Depending on the answers to these questions, consider whether the case might benefit from co-mediation. Mediators with different backgrounds and perspectives can often help the parties to feel heard and to come up with creative solutions to resolve the case. Mediators should be willing to work with counsel to structure a fee arrangement that makes co-mediation cost-effective.

Once these foundational questions have been answered, counsel and the mediator can design a mediation structure that fosters creativity, connection, flexibility, and trust, and encourages closure and settlement. When devising the structure of the mediation, answer these questions:

“ Throughout the mediation, counsel should remember that the opposing party and opposing counsel are people with their own problems, fears, and concerns. ”

  • Should there be an opening session? If so, what should it look like? Would the case benefit from starting the day with a joint session?
  • How should breaks and lunch breaks be handled? Is lunch an opportunity to bring everyone back together in a joint session?
  • Should the mediation occur at a particular pace?
  • How should the information flow be managed?
  • What are the parameters for time-outs?

Prepare Thoughtfully for the Mediation

Wisdom can only come by way of a willingness to accept truth from any source. —Jewish saying

As in any mediation, preparation for mediation in a highly emotional case is key. Only by having a firm grasp of the facts and the law can counsel be prepared, after emotions have calmed, to bring discussion around to the objective strengths and weaknesses of the case. Investigate early, thoroughly, and continuously. Gather and organize relevant documents, locate and meet with key witnesses, and maintain a “cast of characters,” chronology, and storyline that are updated to fit the evolving evidence. Conduct the necessary discovery and file appropriate motions. Select and work closely with the best available experts.

Whenever possible, try to develop a positive relationship with opposing counsel. Take the time to meet for lunch or coffee to get to know each other as people. Make interactions civil, professional, and respectful. Remember that it is the clients, not the lawyers, who have the dispute. Don’t amp up the already emotional case by badmouthing the opposing lawyer to the client. Keep the mediation unburdened by fights between counsel.

Use the mediation statement to refine case thinking for trial and evaluate the evidence objectively. Be wary of “drinking your own Kool-Aid,” that is, being so persuaded by your own advocacy that you lose sight of the opposing view. Describe the relevant facts and legal issues, highlighting strengths and addressing weaknesses. Make the statement concise and pare down the attachments to the essentials. Consider the creative use of government reports, investigative reports, witness statements, television reports, video, charts, and graphs.

Finally, prepare the client and yourself. Educate the client regarding the mediation process, including the possibility that emotions may be high at times. Let the clients know that they can express their views and feelings and can ask for a break if needed. Approach the mediation with as much calm, patience, and objectivity as possible. In the end, remember that mediation requires the wisdom that comes from combining knowledge and understanding.

Mediate Mindfully

If you want others to be happy, practice compassion. If you want to be happy, practice compassion. —Dalai Lama

Careful attention to words and actions at the mediation, while often just a matter of common courtesy, can bolster the chances of reaching a resolution. Throughout the mediation, counsel should remember that the opposing party and opposing counsel are people with their own problems, fears, and concerns. Begin by greeting each of the participants warmly. Listen kindly to the feelings voiced by the other side throughout the process. Without conceding responsibility, express understanding of and compassion for the other party’s circumstances. Look for opportunities for self-disclosures that create a common bond. Address the opposition respectfully; avoid accusations and insults, and advise the client to do the same.

[B]e quick to listen, slow to speak, and slow to anger. —Apostle James

“ A successful mediation requires the parties to look at their present alternatives for making the future as good as possible. ”

Appreciative, courteous, and compassionate listening are valuable tools in building a settlement. Having lawyers and a mediator who will listen carefully to the parties’ stories goes a long way toward achieving settlement goals.

Consider responses carefully, particularly if the opposition’s statements or offer are offensive to the lawyer or the client. Wait for the anger to subside before responding.

Grief is in two parts. The first is loss. The second is the remaking of life. —Anne Roiphe

Strong emotions arise from past wrongs and disappointments, and neither mediation nor a court case, no matter how successful, can undo the past. A successful mediation requires the parties to look at their present alternatives for making the future as good as possible. Honor the clients’ feelings but help them to not stay so trapped in their emotions that they are unable to make reasonable decisions. And be careful to not let empathy for the client cloud professional judgment. Mediation is an opportunity for parties to structure a resolution that will free them from the stress of litigation so they have space to heal and rebuild their lives. Help the client do just that.

[D]on’t ever underestimate the importance you can have because history has shown us that courage can be contagious and hope can take on a life of its own. —Michelle Obama

Counsel’s attitude can have a profound effect at mediation, negative or positive. Lawyers should be mindful that their emotions, particularly anger, fuel those of the client; clients are best served by taking the lawyers’ emotions out of the equation. Mediation is a time for careful, reasoned evaluation of alternatives for resolution. Remaining a calm voice of reason is essential. Give clients hope and support their courageous efforts to momentarily set aside their emotions to make wise and thoughtful decisions about the future.

Stay focused, go after your dreams and keep moving toward your goals. —LL Cool J

Remember, as a negotiator the lawyer is looking for closure. Focus on the objective and look for the path to settlement through the roaring thunder of argument. Be enlightened and enlightening, gracious, and clear. Be open to creative closing strategies that end the litigation and leave all parties with “face” and respect.

Move Clients Forward

You gain strength, courage and confidence by every experience in which you really stop to look fear in the face. You are able to say to yourself, “I lived through this horror. I can take the next thing that comes along.” —Eleanor Roosevelt

Like the end of any prolonged, arduous effort, resolving a highly emotional case can cause its own set of emotions. While the end of litigation is a welcome relief, it can also be a reminder of the finality of the loss and trigger emptiness and fear. This is a good time to commend the clients’ courage throughout the process, reinforce the wisdom of their decision, and express your confidence that they will be able to handle the next steps in their journey.

Conclusion Mediating highly emotional cases requires extra care. The process should start with the selection of a mediator who is qualified for the case by temperament and experience and who can listen carefully to the parties and lead them to a settlement. The mediation should be designed to fit the unique circumstances of the case and the needs of counsel and clients, while remaining flexible enough to fit the ebb and flow of a dynamic mediation process. Careful preparation of the case, the client, and the lawyer are important. At mediation, respect for parties and counsel, compassionate and critical listening, appreciation of all aspects of the case, and a will to reach a settlement are the necessary ingredients to a successful resolution. Finally, supporting the client in resolving the highly emotional case can help the client to move forward confidently.

NOTE 1. See Epstein and Epstein, “Grief, Anger and Fear in Mediation,” Trial Talk 37 (June/July 2010).