Mediation Blog

I recently heard that the latest statistics suggest that 96% of all civil cases in Florida eventually result in a settlement. That naturally means that only 4% of all civil cases in Florida actually go to trial. The numbers and results are literally overwhelming with little room for debate. What are some obvious takeaways from that data?

Actively Work Towards Settlement

Logic would appear to dictate that if nearly all cases settle, then lawyers should be working their cases towards settlement. That means more time, thought, and resources should be dedicated to setting up a case for settlement than even trial. If there was a 96% chance that it is going to rain, are you still going to go all out with your plans for a beach day notwithstanding?

Settlement and Trial Preparation Are Not Mutually Exclusive

You can prepare your case for settlement while still preparing for trial. These activities are not mutually exclusive. Trial preparation and getting a case ready for settlement do not need to operate in silos independent of one another. There are elements of trial preparation that are crucial but also support efforts for settlement and they can be done at the same time.

Preparing a case for both settlement and trial is not complicated. In both instances, you simply need to map out the desired outcome for each. With the specific outcome as a goal, you then make plans for each step to get you to that goal.

Trial Goals

For example, in a trial, the goal would be a verdict for your client. Depending on the case, using the elements of proof from jury instructions will tell you what you need to prevail in your case. From there, you need to make a plan for what is needed in terms of testimony and evidence for each element of proof.

Settlement Goals

Similarly, for a settlement, the goal would be a resolution for a certain dollar amount or outcome that your client can live with. Then your objective is to convince the other side how that outcome is preferable to the unknown outcome that could take place at trial. This means challenging liability or defenses, as well as the amount of damages. The final secret sauce is to convince your client as well as the other side that control over a known outcome (the settlement) is preferable to limited control over an unknown outcome.

Timing is Everything

Obtaining and sharing needed information to evaluate risk must be completed prior to mediation. Again, this needed information is already something that you will be working on during trial preparation. Examples include: (1) the presentation of the parties, witnesses, and experts so their character, credibility, and opinions can be assessed; (2) the sharing of critical evidence that can determine the outcome of liability or assessment of damages; and (3) the resolution of any dispositive motions or evidentiary rulings that could impact trial. All of the foregoing is handled through the completion of discovery including all material depositions and obtaining orders on critical motions. In other words, all the cards are now on the table.

The timing of mediation should coincide with having all the cards on the table. Mediation is premised on the parties being able to objectively make good business decisions. Good business decisions can only be made when information is available. Parties are hesitant to change a position based on the unknown and rarely are good decisions made without having objective information.

Too often mediations are hampered by the fact that critical depositions have not yet been taken, discovery is not yet complete, experts have not rendered opinions, or critical motions are still pending before the Court. The common denominator is the unknown. And it is precisely the unknown that is preventing a party from making a full evaluation so a rational settlement decision can be made.

Prepare Parties For Success

Finally, the human element cannot be ignored. Human beings are emotional creatures and misplaced emotions can be a barrier to settlement. Emotions in the end are a defensive mechanism, which is often a sign that something is not right. I am not referring to mental illness, rather emotions often signal a lack of not being heard, a lack of trust, or frustration for not having all the information to make a decision.

When emotions arise, you must ask yourself what is causing them and what can be done to satisfy their need. This takes some reverse engineering but in most cases, all that is needed is information. Preparing the parties so they can objectively evaluate a case without emotions while also listening to the other side nonjudgmentally to gather more information is the recipe for success.

How does a lawyer prepare the parties for mediation in this context? You need to keep the parties focused on the goals for mediation, facts and nothing but the facts, and the information they need to make a good risk analysis. When a party falls off the rails, and that will happen, you need to be prepared to ask them how their actions or responses assist with achieving their goals for mediation.

When parties on both sides are working objectively and without emotions, they are more prone to share information, collaborate, engage in problem-solving, and make better decisions. All of this builds rapport and trust. With rapport and trust, the parties can make well-informed objective business decisions at mediation and that is precisely how settlements arise.

The Takeaway

Since the overwhelming majority of cases are going to settle, lawyers should proactively prepare a case for settlement sooner rather than later. Prioritizing settlement along with trial preparation is an efficient use of a lawyer's time and can ultimately reduce costs while enhancing client satisfaction.

Preparing a case for settlement and trial are not mutually exclusive activities. Mapping out your goals for settlement and trial will often benefit each other. For mediation and settlement purposes, timing is everything. Reducing the unknown by sharing critical information will allow the parties to make informed business decisions which enhances the chances of resolution.

Preparing the parties for settlement requires keeping them honest as to their goals for resolution and providing the space where facts prevail over emotions. When the parties are operating without emotion and share information, rapport and trust are built which leads to collaboration and joint problem-solving. This is precisely how you can set up your case for settlement success.

Less conflict. More resolution.

Patrick Russell

Miami Florida Mediator

Meaningful Mediation is Ethical, Mindful, and Strategic

meaningful mediation

#mediation #adr #disputeresolution #mediationtips

6 views0 comments

Not all things go our way. We know this instinctively yet become so surprised when the unexpected or unwanted occurs. In a pressure situation with limited time to maneuver, this can result in great frustration, habitual responses, and shutting things down. Does this sound familiar?

Unsurprisingly, a mediation is one of those pressure situations with limited time. And guess what, things are not always going to go your way during mediation.

This can happen when you are confronted with a new fact, witness, piece of evidence, expert opinion, or legal argument that turns the tables on your case. Or, despite your brilliant advocacy, eloquence or skill, the other side just refuses to budge from their negotiating position. What is a poor lawyer to do?

Habitual Responses at Mediation

While many cases can and should settle at mediation, it is just a fact that not all will. The other side refusing to budge from their negotiating position will certainly impede settlement.

When this happens, all too often the habitual response is to double down and repeat the same arguments that already have been rejected. Another habitual response is to raise the stakes and make extreme demands or threats. The other prominent habitual response is to shut down, deem the mediation a waste of time, and call an impasse.

A Better Response: Pivot and Expand Your Goal to Learn Something New

Doubling down with the same arguments, raising the stakes, or making threats not only shuts down the mediation but builds a wall that impedes settlement later.

We should always be trying to build bridges not walls when it comes to resolution. While the case might not settle at mediation or even be ready to do so, that does not mean that it cannot down the road. I call this the planting of seeds for settlement.

One way to bridge the gap to settlement is to gather information during mediation. I do not mean that you are to use mediation as a discovery tool. No, to the contrary, what I am suggesting is that you make an intention to work with the other side so you both gather information that you both need to fully assess the case.

By gathering information, you can with the other side analyze its validity, assess risk, and address options. Change a fact and you can change a case or at least your assessment of it.

Shutting down the mediation where the parties have learned nothing new about the case and are in the same position as when they first started the mediation, is a lost opportunity. Not digging deeper is just an agreement to disagree on a very superficial level.

The Sharing of Information

If your case cannot be settled at mediation, at the very least pivot and make the effort to learn something new about it. Try to learn the precise reasons for why the other side feels so strongly against your position and what is the support for those reasons. You may find the other side lacks information or is relying upon wrong information.

This is usually not a one-way street. Think of it as show and tell. While you are trying to learn something new, be sure to educate the other side what your precise position is and what supports it.

Sharing information from your side not only encourages reciprocity from your counterpart but also gives them something new to think about and consider. Remember how changing a fact can change a case?

This is the essence of collaboration. If ever during your case, mediation is the perfect time to attempt collaboration. The honest sharing of information builds trust, rapport, and understanding, the hallmarks for making a good deal.

The Takeaway

I recognize that not everyone is going to want to share information with you, but you should at least have the intention to try to learn something new. Informed decisions require information. Sharing information during mediation builds rapport, trust, and allows the parties to make rationale business decisions. What is the worst thing that could happen, an impasse?

Less conflict. More resolution.

Patrick Russell

Miami Florida Mediator

Meaningful Mediation is Ethical, Mindful, and Strategic

meaningful mediation

#mediation #adr #disputeresolution #mediationtips

8 views0 comments

The ancient strategies from "The Art of War" by Sun Tzu, have been applied to so many modern activities, including business negotiations, sales, and even litigation practices in the legal world.

The Adversarial System: I Win You Lose

In the context of litigation, perhaps we should rethink our methods. Often litigation devolves into a scorched-earth and zero-sum game, meaning there is only one winner and a whole lot of debris. If war is truly hell, why would anyone want to wage it?

Many participants in the civil litigation system will reflect afterwards about how terrible and draining their legal case was. Those comments often are from the lawyers themselves who are being paid to play in that realm. Imagine what the actual client feels like.

Casualties in the Civil System

To the extent that statistically speaking almost all cases settle, would it not make sense to create an environment for all participants that encourages resolution rather than rancor? An adversarial system in which the participants have a mindset towards waging war only delays an amicable settlement, reduces civility, and endlessly bogs down judicial resources. As a result, the efficiency and confidence in the legal system is challenged, expenses are increased, frustration and dissatisfaction rise, and the mental health and job satisfaction of lawyers decline. Does this sound familiar?

Getting to We

There can be a better way. All it would take would be a change in perspective. Changing the perspective from waging war to waging cooperation and collaboration. If you start from the perspective of trying to understand, cooperate, and collaborate, would you not be in a better position to find a resolution to your case sooner rather than later?

As we currently do things, we go to war first. Beating up the other side, showing them who the real boss is. It should not be surprising when that tact is taken that you are fed the same medicine from your counterpart. When this happens, are you more likely or less likely to want to make a deal with the other side?

Changing the Perspective

I think we have it backwards. You can still cooperate and collaborate from a position of strength. Nothing is being lost by sharing information and trying to understand where the differences really lie. In fact, by doing this, you are becoming more focused so that better and more informed decisions can be made. That is the art of the deal.

Building Rapport to Collaborate

To get there, you need to be mindful of some very basic skills that you already possess. First, your communications should be honest, sincere, and non-judgmental. Second, you should truly listen to the other side and be curious as to what they believe and why. Third, whatever actions you take should be consistent and helpful to acquiring information that will assist everyone to evaluate their case in a fair and open manner. Finally, while doing all of this, employ a little empathy to put yourself in the shoes of your counterpart so you can see their side of the case and why they view it that way. All of these actions will build better rapport, understanding, and ultimately the willingness to collaborate. With this, a foundation has been set for jointly finding an amicable resolution.

The Takeaway

No doubt that it takes courage to try this. But we all know that warriors have courage. So I say to you civil litigation warrior, do you have the courage to try? You have nothing to lose since you can always go back to waging war. But war, should be your last resort not the first option.

Less conflict. More resolution.

Patrick Russell

Miami Florida Mediator

Meaningful Mediation is Ethical, Mindful, and Strategic

meaningful mediation

#mediation #adr #disputeresolution #mediationtips

10 views0 comments