Having practiced law now for almost four decades, I’ve been involved in the resolution/settlement of thousands of cases. When I was a much younger lawyer, we didn’t have formal mediation sessions. We would Â just talk with the other lawyer, pick-up a phone or sit down with the claims adjuster and justÂ worked it out. Now theÂ in-thing is formal mediation.
For those who may not be familiar with the mediation process, in the context of our firmâ€™s areas of practice, it is basically a formal meeting involving all parties to a legal dispute, who hire an independent person called a mediator, to try to resolve the dispute between the parties through settlement. The intent is to avoid the risk, uncertainty and expense associated with taking the dispute to trial.
There’s no doubt in my mind that a good mediation session settles some cases that might otherwise be difficult toÂ work out. That being said, I seem to be running into some trends over the last couple of years that are – quite frankly – starting to really p**s me off!
Normally, I would keep my lawyer-rants to discussions with those in my law firm or with some lawyer pals, who share the same frustrations.Â Recently, however, I read a post by a legal blogger – aÂ blawger (a lawyer who blogs), Scott H. Greenfield, who took to task legal bloggers for not taking a stand on issues. His blawg is titledÂ Dead Lawyers Have No Enemies. I decided I would do the Lazarus thing andÂ take a stand on an issue that’s been bugging me for some time – modern day mediation and mediators.
In no particular order, here is my list of the top 5 things about mediation that just tick me off:
1. No meaningful discussions before the mediation session
How many times now have I heard the mantra -”No, we don’t want to engage inÂ any settlement discussions (interpretation – no first offer) until we get to mediation.” Far too many times I’m afraid. Why is this? Can’t people get the process startedÂ before mediation so that we all can make an intelligent decision as to whether formal mediation has a chance of working or whether the upcoming mediation has all the ear-markings of a waste of time and money?
Hereâ€™s the mediation scenario: The clients have to miss work or otherwise be inconvenienced to be at mediation. Many times we have to travel some distance to attend. We sit through the mandatory (but necessary for the clients) introduction by the mediator advising those new to this process who the mediator is, what his/her background is, what the process is all about, how it’s confidential and nothing said can ever be used outside the mediation session. The confidentiality form is signed and the parties go to their separate rooms.
On behalf of my clients (the party bringing the lawsuit), we make a demand. After some time passes (which varies greatly depending on the mediator), the firstÂ offer is made. Lately, more often than not, the offer is some ridiculouslyÂ low-ball amount. The mediator tells you and your clients: “Donâ€™t take it personally. They’re just trying to send a message” You fight every instinct welling-up inside you to send yourÂ own message by just walking out. After getting control of your own emotions, you try to calm your clients down. Not easy to do sometimes â€“ for instance when (by way of a real life example) my clients just been told their dead child is worth $25,000. Of course thatâ€™s not whatâ€™s being said by the defendantâ€™s insurer, but thatâ€™s exactly how it resonates â€“ in this example â€“ with the plaintiffs, who do take it personally.
There’s no doubt that when as a plaintiffâ€™s lawyer you make a demand that’s simply ridiculous, you somewhat deserve to get low-balled in Round 1. However, when you purposely try to put a reasonable number on the table – albeit giving yourself room to negotiate, it is enraging and detrimental to the process on many levels when you getÂ low-balled by the defense. Apparently, the defense doesn’t believe you actually tried to make aÂ reasonable initial demand. They take a reasonable demand asÂ a sign of weakness in the plaintiffâ€™s case. Yet, if I were to take the other approach and start with an equally outrageous demand in Round 1, I would never hear the end of itÂ from the other side. Sure â€“ â€śreasonableâ€ť is in the eye of the beholder, but skilled advocates generally have a sense of the range it takes to be in at the end of the day to settle any given case.
My free advice: If mediators were doing their job, they would get the negotiations underwayÂ before the first formal mediation session. My suggestion: letâ€™s get all the foreplay out of the way before the formal mediation session. If itâ€™s going to be a waste of everyoneâ€™s time, then letâ€™s put our efforts and money to better use and not mediate in the first place.
2. The Defense not understanding the impact of their conduct
Having been a defense lawyer beforeÂ switching sides (referred to by insurance adjusters as “going to the dark side“), for years, I didnâ€™t sit in the room with the injured party when we sent the first offer (and the second and the third and….) into the plaintiff’s room. Had I been a fly on that room’s wall, maybe I would have realized a lot earlier just what impact our “message” was going to have on that injured party, whose case we claimed we were trying to settle.
As the years went by and I saw some plaintiff lawyers packing-up their bags and heading-out with their clients as a response to our message offer, I started to get it. Call me a â€śslow learner,â€ť but at least I had my epiphany.
Now that I am sitting with the injured person who brought the lawsuit, let me share a bit of advice with my colleagues on the other side. Don’t p**s off the plaintiff and in turn his/her lawyer by sending theÂ wrong message. Does any defense lawyer or risk management person really believe the plaintiff wants to hear: “Your dead child (or replace with – your injured child, your missing leg, your paralyzed son – and every other injury that has befallen a plaintiff) is worth $25,000 or $50,000.”
Now that I’ve been sitting with these injured or grieving people for years, I get to see firsthand Â just what kind of impact a low ball, “message offer” has on people. It starts the process out on the wrong foot. You – as the lawyer representing the injured person – have to try to remain calm in order to calm your client down. You try to convince them that this isÂ just a game being played and they shouldn’t read anything into it. Well, Dear Defense Lawyer and Claims Person, it isÂ not a game to the person who’s been injured!
Apparently many defense lawyers are relying on their bible,Â Mediation 101, which ostensibly tells them that when they are in the initial general session, the defense should tell the plaintiffs just how sorry they, the defense, are for the injuries and losses the plaintiffs have suffered.
Well hereâ€™s some free advice from the dark side: With the first chance you have to show that thisÂ empathy was really sincere, donâ€™t slap the plaintiffs in the face with aÂ low ball, message offer. Itâ€™s not a good technique!
If you, the defense, take this approach, you have completely lost all credibility, the war is on and now it will take hours of worthless and unnecessary haggling to get to where this all could have startedÂ if the parties had started out in good faith efforts to negotiate. Hopefully, Advanced Mediation Technique – 201 will be coming out soon!
3. Mediators who are nothing but high-priced messenger services
Finding a qualified mediator seems to be getting harder and harder. The good ones seem to be booked-up for months to come. Maybe that’s because theyÂ are good. Why does it seem to me that every retired judge now thinks that he or she is a qualified mediator? Sorry, Former Member of the Judiciary, but you are not all qualified. Some are; some are not.
How many times have the litigants experienced a mediator who simply walks from room to room and delivers the latest offer or the latest demand? My answer: way too many times! If I need a courier, I’ll hire a courier. They are a heck of a lot less expensive and could be equally effective.
Since so many of us “in the trenches” are searching forÂ skilled, qualified and effective mediators, who don’t cost an arm and a leg (and dramatically increase the costs of the case), a lot ofÂ newbie mediators are among the selection pool. Well, I for one am not interested in a mediator getting his or her training-wheels on my client’s case. Can’t there be some universally accessible databank or message board or listserv in today’s digital age where litigators canÂ freely express their views, comments and criticisms of mediators so that litigants can have a real choice of qualified, reasonably priced and effective mediators? Maybe I’ll make that my next project – in my spare time.
4. Using mediation as a “feeling out” session
I cannot tell you how many times I have gone to a mediation session where the goal seems to be that one side – usually the defense – wants toÂ get a feel for just how much it’s going to take to get the case settled or toÂ get a feel for the plaintiff and how they will come across to a jury if the case doesn’t settle.
Sorry, but mediation is not discovery! If the defendant’s insurer or claims person wants to gain theseÂ insights, then they should take the time, in serious cases, to attend the plaintiff’s deposition. If they can’t be there, maybe they will be interested to learn that there’s new technology called a video deposition. It’s only been around for years!
In this same vein, it fascinates me when I hear a messenger mediator tell me some of the justifications for why a low-ball offer being made is well-founded. The mediator (particularly those in theÂ messenger class) takes as gospel so-called facts about the case from the defense and conclude they are being reasonable – or even magnanimous – when theseÂ facts are nowhere to be found in the evidence of the case being mediated!
Recently, I had a defendant and its settlement team of lawyers and adjusters, totally enamored with their causation defense (admitting in essence the caregivers had totally failed to follow acceptable standards of good medical care but claiming â€“ â€śour conduct, which we recognize was awful, didn’t cause your client’s injuriesâ€ť) that drove the entire negotiations toward abject failure. After hours of meaningless back-and-forth, small, incremental offers and demands, the whole mediation session fell apart. Â If the mediator had truly known the real facts of the case, he would have realized that this so-called defense was in large part predicated on a defense expert’s unfounded opinion. Truth be known, that â€śexpertâ€ť had totally failed to read our client’s subsequent care records, which disprove his baseless opinions.
Should I have told the defense where they were wrong? Or – should I save this information for cross-examination if I honestly believe the case is not going to settle and I will have to try it? Tough call – but I opted for the latter course since the negotiations were going nowhere fast anyway. I made a judgment call that the reserve put on the case by the healthcare was so low that this case would not settle no matter what they learned that day.
Mediation sessions are intended toÂ resolve cases, not act as a session for the claim’s representative to figure out what the case is about! Just how many serious cases do these claims people have that they can’t come prepared for mediation? How in the world do they set a reserve on a case not understanding the medicine (in a medical malpractice case) of the case?
A free, albeit unsolicited message for our claims brethren: If you don’t or canâ€™t understand the medicine before you put a value on it, learn the medicine from your defense lawyer. Isn’t that what you are in part paying for when you pay their hourly fees? Really know your file and question your defense counsel about their recommendations. Simply put â€“ come to mediation understanding the facts and the law as best you can. Donâ€™t see mediation as just another opportunity to spend a day out of the office.
5. Mediators who don’t, can’t or won’t challenge the positions of each side
Maybe this is a corollary to my â€śdonâ€™t be just a messenger,â€ť but it holds a special place in my heartâ€“ so it makes the list. I canâ€™t tell you how many mediators announce during the initial, joint session (where all parties and counsel are present) that they are not advocates for one side or the other. Well thatâ€™s fine; however, there comes a time when the position of one party or the other needs to be challenged by the mediator.
Messenger Mediators just listen and are often blindly impressed by the arguments of the lawyers for each side. Hereâ€™s the problem â€“ a good mediator needs to be able to understand the validity â€“ or lack thereof â€“ of those arguments to be effective. If a mediator doesnâ€™t understand the law or the facts of a case well enough to challenge either sideâ€™s position, then what purpose do they serve?
Admittedly, a mediator cannot possibly know the â€śfactsâ€ť of a case as well as the litigants. That does not mean, however, that they should simply show-up and facilitate a settlement by trying to act as a middleman in reaching the â€śsweet spotâ€ť of dollars that both sides are willing to accept to reach a settlement. While this approach may work in some smaller cases, it simply does not work in more complex and higher value cases.
Some of the best mediators I have had the pleasure to work with listen to the arguments, analyze the relative strengths and weaknesses of those positions and then challenge the parties and lawyers by questioning the validity of their arguments and position. When thatâ€™s done, it is amazing how progress is made toward a resolution of the case. Simply put, good mediators cut through the posturing and puffery and expose the weaknesses of each sideâ€™s case. The only way that can happen is if the mediator has taken the time to really learn the case. In my field of medical malpractice, that may mean taking the time to read the key medical records, key depositions or whatever other â€śevidenceâ€ť each side believes supports their respective position and using that knowledge to cut to the heart of the issues.
Sure â€“ it may mean paying a mediator a bit more for their time, but if it gets a settlement done, isnâ€™t it worth it? I for one would rather spend money for a mediator who can perform this type of service than one who spends hours in the mediation session just listening to a partyâ€™s specious arguments, getting a new offer or demand and then doing the shuttle diplomacy gig. Way too often, this time-consuming shuttling from one room to the other doesnâ€™t work. The mediatorâ€™s time â€śin the roomâ€ť would be much better spent by questioning, probing and dissecting the relative positions of each side. That â€“ in my experience â€“ works more often than not and gets the case settled. Every case has weaknesses for all parties involved. So â€“ Mediators â€“ find the weaknesses, expose them and use them to bring reality to the mediation process in order to get it done. You donâ€™t have to be an advocate, but you do need to be pro-active.
What are your pet peeves?
This blawg rant isÂ not intended just for lawyers or mediators. I’d love to hear from people – likeÂ clients/parties to a lawsuit, who have participated in today’s modern marvel – formal mediation sessions.
Lawyers and litigants â€“ plaintiff and defense â€“ what is it about mediation that you think needs to be fixed? Maybe if we all put our heads together, we can make this a more meaningful process for everyone.
One More Mediation Pet Peeve, John Bratt, Miller & Zois