An Insiders View of Mediation

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 interview ed 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 de fend ant. 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 decisionmakers. 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 decisionmakers can act with authority.

  1. When should the initial demand be made?

Demands should be made by Plain tiffs30 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 wit nesses; and 4) what is the negotiation history between the participants? Each of these questions focusses 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 achronological 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 trans actional 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 33

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

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

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.

 

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.