By Robert A. Clifford
It’s no coincidence that more and more retired judges are becoming mediators, long before one would expect some to leave the bench. Mediation has become quite popular in recent years because it has become successful as an alternative to dispute resolution.
Mediation is a process during which both sides and a third objective party are forced to focus on the case with an eye toward coming together to resolve complex issues that sometimes can be accomplished without the constraints, costs and risks of a trial. It may take more than a day, depending upon the number of parties and the complexity of the case, but it may be an excellent way to try to settle the matter before going to trial.
When I agree to mediation, I keep in mind some pointers:
Know when to mediate. Mediating too early is a waste of time. You need to have undergone sufficient discovery so the theory of your case can be fully presented to the mediator. The defense needs to know the strengths of the matter in order to use the information to assess the strength and value of the case.
At the same time, a successful mediation must expose the weaknesses of the defense. The defendants must fully appreciate their risks before any meaningful settlement discussions can get underway.
Allow the client to be present for the mediation. This demonstrates the authority you have to settle, but it also allows the client to be exposed to the weak parts of her case, which the mediator most certainly will convey during the process.
Create a video strictly for mediation purposes if it is warranted. It should demonstrate the hardships that the client must endure due to injury by the defendant(s). Friends, relatives, and others close to the plaintiff, as well as a living plaintiff, explain how life has changed or how the defendants’ actions has forever impacted the plaintiff’s life. It is not meant to garner sympathy or be a re-enactment of one’s deposition.
In what should be no more than a half hour, it helps the defendants assess the information. In a wrongful death case, those interviewed explain what was taken from them, explaining their suffering as well as of the decedent’s before his death.
For highly complex cases or those involving great loss, conducting a focus group or two before mediation can be very beneficial. Although you may not yet be close to trial, it is a solid way to figure out how to present the information at a mediation and to persuade the defendant or the defendant’s insurer to pay full and fair compensation for the injuries or death of the plaintiff.
Premediation focus groups not only assist in organizing your evidence and judging the credibility of the defense theories, they can also expose questions about or weaknesses in your own case and how to better downplay them to the mediator and the defense. Focus group jurors often can show you which theme of your case will gain the most acceptance. Focus groups also can assist in assessing the realistic dollar range for your damages. It may be a good idea to have your client attend a focus group; however, I generally don’t tell the opposition that is where I am getting some of my information. Although some lawyers like to share this work product, I believe in keeping it confidential.
Remain committed to trying the case at all times. Above all else, the defense must know that you are prepared to take the case to trial if mediation fails. Mediation is not a way to shortcut the system. It is a less risky way to achieve justice because trial always remains a risk for all sides. If mediation allows you to spare your client the expense and hardship of a trial and the dollars offered are just, then it is a good resolution.
But if the defendant is merely using the process as a ploy to waste time and try to gain new information, cut the mediation short and simply move on to trial.
It is important for lawyers to understand the mediation process and to act ethically. In order to present these concepts, my law firm is sponsoring “Ethics in the Mediation Process,” a two-hour free webinar open to all lawyers that will discuss some of the pitfalls and ethical issues involved in mediation.
Joining me at 2:30 p.m., Feb. 16, on the panel is professor Katherine Dutenhaver, director of the DePaul University School of Law Center for Dispute Resolution, and former Cook County Circuit Judge Stuart Nudelman, now a mediator for ADR Systems of America. The program will examine many issues that lawyers may confront without knowing what to do: inadvertent disclosure of information, possible coercion of a party to an agreement and unrepresented third parties.
Even more basic is choosing the mediator: How do you know the mediator is impartial? What information should be disclosed to determine if the mediator can be impartial in the case? When has the mediator crossed the line when the mediation is already underway?
In the end, mediation determines whether a proposed settlement is a good alternative to trial. If the mediator is unbiased and committed to getting the parties to get to “yes,” it can be a useful part of the process and result in a fair resolution for everyone.