CHAPTER 8
ROLE OF A MEDIATOR IN
THE MEDIATION PROCESS
The role of a mediator is to be neutral and facilitate dialogue between the parties in order to reach a settlement. A really good mediator is more than a message carrier. They listen to both sides and have an understanding of what is at stake. Most good mediators are either former trial lawyers, with a massive amount of litigation experience, or retired judges who have presided over hundreds of trials. With this type of experience, they are sure to have an intimate understanding of how things tend to play out in the courtroom. It can never be predicted with any certainty what a jury will do, but there are certain generalities about the process that are valid and allow for risk analyses in determining the value of any given case.
Once the joint session is over, the parties will be put into separate rooms. The mediator will talk to the plaintiff to hear their last demand, and a good mediator will also ask the plaintiff to explain the weaknesses in their case. This forces the plaintiff’s attorney to adjust their position and reevaluate their case. Next, the mediator will meet with the defendant, defense counsel, and the insurance adjuster. Once again, a good mediator will ask the defense counsel to explain in front of the adjuster and defendant the weaknesses in their case.
This process is what makes mediation so effective. Many times, the defense attorney will share with me that they have a desire to get the case resolved, but that the insurance adjuster is completely out of touch with the actual value of the case. The defense attorney will say, “Look, I cannot tell this insurance adjuster the hard facts because they hired me, they are paying me, and I am going to get fired if I do.” Under these circumstances, the mediator will oftentimes advocate the plaintiff’s positions at the request of the defense attorney so that the adjuster is faced with the reality of the case without the adjuster becoming crosswise with their own attorney.
When there is no insurance or when the defendant has a high copayment (which we refer to as a high self-insured retention), the defense attorney has the same problem. They want to have the hard conversation with the defendant, but will not want to be adversarial toward their own client and get fired as a result. Once again, this is when the mediator can come to the rescue by having that hard conversation in private, thereby taking the burden off of the defense counsel. As the mediator goes back and forth, they will press the strength of the defense’s case when meeting with the plaintiff, and push the strength of the plaintiff’s position when meeting with the defense. This is done in order to get the plaintiff to come down on their demand, and to get the defense to increase their offer. If a number can ultimately be agreed upon, then there will be a settlement. If there is a failure to come to a settlement, then at some point, the mediator will declare an impasse and the mediation will end.
It is important to keep in mind that in the eyes of a mediator, a settlement is a success. If a settlement cannot be reached, it will mean the mediator has failed, so they are highly motivated to reach a settlement. When there is a deadlock, there will sometimes be a mediator proposal. This is something that not all mediators are comfortable doing. However, really good mediators will do a mediator proposal, and they can be quite effective. If a mediator is unwilling to do a mediator proposal, that should be seen as an indication of a poor quality mediator. When a mediator is too afraid to do a mediator proposal, it suggests that they are unwilling to take responsibility for anything in that mediation.
During a mediator proposal, the mediator will write down what they recommend as a settlement amount based on everything they have heard. However, this does not necessarily mean that they will recommend a number that falls between what each party wants. In other words, if the defense is offering $100,000 and the plaintiff is demanding half a million, then the mediator proposal is not going to default to $300,000, which would be the halfway point between the two parties. If the mediator believes that there is more merit to the plaintiff’s case, then their proposal might be $400,000. If they believe that there is more merit to the defense’s case, then their proposal might be $200,000. Regardless, the mediator’s proposal will be provided to both sides and the mediation will be terminated. Both sides will agree to call the mediator within three days, during which time they will seriously consider the mediator’s proposal.
If both sides agree to the proposal, then there will be a settlement, and if one side does not accept the proposal, then it will have failed. If the proposal fails, the mediator will not tell either party how the other responded to the proposal. This means that if the defense agreed and the plaintiff disagreed, the defense will not be put at a disadvantage by being viewed as weak for having agreed to the proposal; the same applies to the plaintiff. A mediator proposal is just one more attempt to resolve a case, and it does not involve a risk for either side.
CHAPTER 9
HOW IS THE MEDIATOR SELECTED IN A PERSONAL INJURY CASE?
The courts will appoint a mediator in a personal injury case. The problem with this is that judges are human, so they are going to appoint people whom they know. If the judge’s friend happens to be a really good mediator, then a really good mediator will be appointed. Conversely, if the judge’s friend happens to be a lousy mediator, then a lousy mediator will be appointed. It has been my observation that if two parties agree to a mediator, the court will appoint that mediator. This is because judges ultimately just want cases to settle, and a case may be more likely to settle when both parties have agreed upon a particular mediator.
If the court appoints a mediator who is highly skilled and the defense agrees to use that mediator, then we will agree to it. Otherwise, I have a strict rule, which is to always make the defense choose the mediator. This is because my clients are people who have been hurt, experienced the death of their loved one, or have otherwise had a horrible tragedy visited upon them. They are not necessarily schooled in litigation or finance, and they have hired me to guide them through the minefield of the civil justice system.
The other side, however, is quite different, because while the defendant may or may not be sophisticated, the insurance carrier that has hired that lawyer has an army of extremely sophisticated lawyers, accountants, and actuaries. Based on their own database of experts, they will have their own opinions as to what a case is worth. If I were to force them to accept a mediator of my choosing, then what have I done? I will have subverted the entire process by allowing the defense to perceive the mediator as plaintiff-oriented. As a result, they are going to ignore anything and everything that mediator has to say. I do not care if the mediator chosen by the defense is oriented in their direction, because they cannot force a decision upon me. Furthermore, I will know how valid my case is if I can convince the mediator to agree with me. If a mediator they chose is arguing a higher case value, then their words will carry more weight with the defense.
CHAPTER 10
WHEN SPEAKING WITH THE MEDIATOR, WILL THE OTHER PARTY BE PRESENT?
With the exception of the joint session, all communications with the mediator are confidential, and they would need permission before sharing the details of private conversations with the other side. If permission is not granted, then the mediator must honor that. In my experience, mediators are meticulously honest and extremely careful not to betray a confidence without permission. This is important, because I may disclose to the mediator a detail that I had planned to spring on the defense should the case go to trial. At that point, I will be laying a number of traps, and if the mediator is aware of that, then they will be more committed to reaching a settlement and will take a stronger position with the defense. In the past, mediators have asked for my permission to share certain information because they felt that it would adjust the defense’s evaluation and make a settlement more likely.
Is It Expected That The Two Sides Are Going To Be Far Apart On Settlement In The Beginning?
As a practical matter, if the parties are close with regard to a settlement amount, then it may not be wise to spend $3,000 to $5,000 on mediation. Mediation is intended for parties who disagree to such an extent that they cannot reach any type of settlement. Serious injury cases involving permanent brain damage, an amputation, or a death commonly involve parties who disagree by 5 to 10 million dollars. Even if there is that significant a gap, it does not mean that the case cannot be settled via mediation. In fact, I have handled cases wherein we started off at ten million dollars apart and mediation was ultimately successful.
CHAPTER 11
TACTICS THAT THE DEFENSE USES DURING MEDIATION
By virtue of my extensive experience with mediation, I have seen countless defense tactics. One of the most blatant tricks might come into play if the adjuster is from the East Coast and therefore has to fly into a different time zone for mediation. When this is the case, they will try to run the clock to four o’clock our time, and then claim they are unable to get additional authority because their home office is closed. This puts pressure on us to just try to get it over with. Alternatively, an adjuster from out of town may claim that they cannot continue discussion because they need to get to the airport. It is the classic take it or leave it.
Another trick used by the defense is to claim that they would need to convene several layers of management at the home office in order to get additional money to propose a higher offer. They will use this to delay the case and will tell us they will get back to us in four months. In doing this, their goal is to pressure us to simply accept what has already been offered. Alternatively, they may tell us that if we request a higher settlement amount, the members of their head office will get angry and take all of the money off of the table.
One of their favorite tricks is to claim that their manager is furious because they came up with a number too fast and they want some huge concessions before they can offer any more money. This type of statement will not come directly from the adjuster; it will come from the mediator in the private session. The mediator will tell me that the defense made a mistake by coming up way too quickly, and as a result, their home office will not give them authority to offer any more money unless I make a massive concession.
So, what is my solution to all of these fake immediacies? I will offer to reconvene the mediation by phone on the following day, or I will just refuse their offer. I will sometimes call their bluff by telling them to not be manipulative by using phony ploys concerning schedules and availability. By some miracle, they tend to find more money when they’ve been called out on their bluff.
The worst trick—and lawyers need to be very careful of this—is when they ask for a pre-litigation mediation and promise to be serious even though there is no lawsuit on file. Despite having been successful on a number of these, I always initially insist that they concede liability before a pretrial mediation commences. This is critical, because if there is no lawsuit on file and no discovery has been done, then I will not have all of the evidence and therefore will not be able to use it against them. I once failed to insist that they concede liability before pretrial mediation, and they proceeded to deny liability and claimed that the defendant had done nothing wrong. However, in the face of saying they did nothing whatsoever that rendered them liable, they offered a million dollars to the family for the loss of their loved one. Since it was a burn death, we rejected that offer.
During the course of 20 months of really difficult litigation, we uncovered outrageous facts concerning their misconduct. At the end of those 20 months, we were able to show that every statement of fact by the defense counsel at the first mediation was an outright lie—not an exaggeration or an oversight, but a complete fabrication. Once all of the witnesses had been sworn in under oath and we had all of the documentation, we had a second mediation 60 days out from trial, and the case settled for $4.4 million. Our clients were poor, unsophisticated, and uneducated, so the defense counsel just assumed that one million dollars could make the tragedy disappear. I tell this story but I also want to mention most defense lawyers I have dealt with are honorable people that adhere to high ethical standards.
CHAPTER 12
WHAT IS THE OUTCOME OF THE PERSONAL INJURY MEDIATION?
At the end of the mediation, there will either be a settlement or the mediator will declare an impasse. Occasionally, both sides leave with the mediator proposal and take a few days to come up with their decision. If a settlement is reached, then the case will be over. If there was a minor involved, then there will be a minor settlement hearing in order to obtain the court’s approval for the settlement on behalf of the minor. If the mediator declares an impasse, then the parties will find themselves in their original position, and eventually the case will be tried.
How Long Does The Mediation Process Take?
For cases valued under $100,000, mediation can be completed in half a day, whereas cases valued at over $100,000 usually require a full day of mediation. Mediation in multi-million dollar cases can last for two days, or be extended into two separate mediations. For example, my partner and I once handled a death case in which one million dollars was offered at the first mediation. At the second mediation one year later, the offer was three million dollars. That case involved an explosion and a very gruesome death, and at the end of jury selection with trial about to start, we settled for $7.5 million. Mediation is a fabulous tool that works most of the time, but it is always smart to be prepared to walk. If the other side can sense fear and desperation, then a lousy settlement will be offered.
What If The Settlement For My Personal Injury Case Is Not Reached At The Mediation?
If a case does not settle at mediation, the lawsuit would continue as though nothing had happened. Remember, if the plaintiff is being unreasonable, the defense also has the right to a jury trial.