Mediation Blog

Updated: Dec 9, 2021

When is the right time to mediate? This is both a philosophical as well as a practical question. The answer ultimately depends on what you are trying to accomplish at mediation.

When to Mediate

There are generally three times during the course of a case in which to mediate. First up would be early mediation at the start of a case before much time and expense have been invested in the case. Next, you have mediation in the middle of the case before dispositive motions are heard that could turn the tide of the case. Finally, there is the end of the case mediation just before final trial preparations.

Early Mediation

The reason to mediate a case early is to save time, legal fees, and expenses for a matter in which the outcome may be fairly certain. In this instance, the germane facts of the case are generally not disputed and liability seems clear.

Naturally, anything can happen at trial and there is of course the possibility that new issues could arise or be discovered if the case progresses. However, the real concern at this point generally is the measure of damages, costs, and legal fees.

Early mediation is intended to save costs and legal fees. Proceeding with full-blown litigation at this point will only increase costs, legal fees, and acrimony. Such counter-productive measures will diminish the ability to resolve a case later down the road. That is precisely why an early mediation at this time can be effective for these types of cases.

On the other hand, if the case has many disputed facts and liability is strongly contested, an early mediation generally will not be effective. The effectiveness of early mediation declines when the parties need to develop their case and evaluate the potential outcomes as it relates to motions to dismiss, motions for summary judgment, and ultimately trial.

If a party cannot justify to either pay more or accept less than what they want, there is no reason for them to do so at early mediation. So in the end, an early mediation will generally only work if the parties have all the information they need to assess liability and damages. If you intend to proceed with early mediation, you must ensure that you have given the other side everything that they will need to make an assessment of the case in order to resolve it at an early mediation.

Middle of the Case Mediation

The reason to mediate in the middle of a case is generally to leverage the unknown and the threat of an adverse consequence to secure a favorable settlement.

The middle of the case mediation is generally the most difficult case to mediate since the parties will rarely agree as to the likely outcome of any dispositive motion. If the parties did agree to the likely outcome of the dispositive motions, the mediation would only be a measure of damages, costs, and legal fees.

When the parties dispute the outcome of dispositive motions, the decisions being made at mediation are often being made on instinct, interpretations, best guesses, and projections. Think of this as poker, chicken, or who blinks first.

A party may take less or pay more out of fear of losing the dispositive motion. Both sides are operating in the realm of the unknown and the case will only resolve if their fears and damage evaluations converge. Those are a lot of moving parts and that is what makes these cases the most difficult to resolve at mediation.

If you intend to settle at mediation in the middle of a case, you must provide as much information as possible to the other side as to the certainty of your position and why you are most likely to succeed with your dispositive motion. That means backing up your position with facts, evidence, and expert opinions. Vagueness, ambiguity, telling but not showing, is not going to help. Removing uncertainty at this point is your friend if your intention is to settle.

More often than not, parties are not willing to tell and show. Without telling and showing, the other side may have no fear and thus no motivation to settle at mediation. That is why many cases in this position do not resolve at mediation and they move on to have their dispositive motions heard, for better or worse.

End of the Case Mediation

For purposes of resolution, the end of the case mediation is perhaps the most effective. The reason why the end of the case mediation is the most effective is that the parties now have the most information and data in order to make informed decisions.

The only remaining uncertainty for an end of the case mediation is what a jury will decide in terms of liability and damages, and perhaps some final evidentiary rulings. By now, the parties have been able to assess witnesses for credibility and likability, the weight of evidence, and the themes for trial.

At this point, both sides should have already calculated a best case, worst case, middle case scenario for trial. Armed with all of this information, the parties are now equipped to negotiate certainty at mediation in exchange for the uncertainty of trial. If insurance adjusters are involved in the case, this may be the only time that a settlement may be likely given the necessary risk analysis and reporting that is required for them.

The Takeaway

The right time to mediate your case depends not only on your case but also on your intentions for mediation. Assuming your intention is to resolve the case at mediation, you will need to eliminate as much uncertainty as possible for the case. That means, telling and showing, sharing information, and resolving pending legal issues that could ultimately impact the result of the case. Resolution is based on a party making an informed decision and you can only get that when they have as much information and certainty as possible.

Stay well,

Patrick Russell

Miami Florida Mediator

Meaningful Mediation is Ethical, Mindful, and Strategic

meaningful mediation

#mediation #adr #disputeresolution #mediationtips

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Updated: Dec 9, 2021

In certain ways, a lawyer's preparation for a mediation settlement conference is very similar to what is done for any dispositive motion, evidentiary hearing, or trial. There is a review of the claims, defenses, damages, supporting evidence, witness testimony, and case law.

Often reports, memos, and outlines are drafted synthesizing all of the case materials and positions. In high stake cases, full-blown slide presentations are assembled, day-in-the-life videos are produced, and computer simulations and accident reconstruction demonstrations are created. When mediation is conducted near trial, all of this work is essentially nothing more than trial preparation.

The fact that mediation preparation is often treated as a prequel to trial is not a surprising concept. Nearly everyone does this. What I am suggesting is that there can be more to mediation preparation and not doing that is a lost opportunity.

Adjust Your Intention

If you want a trial, you prepare for trial. Likewise, I would suggest that if you want a settlement, you should prepare for a settlement.

This is not going to require a whole lot of extra work. It is simply adjusting your intention to go into mediation with the goal of settlement. This does not mean you are giving away the house. No, you are preparing for mediation with the goal of settlement under your terms so the uncertainty of trial and its expenses can be avoided.

Of course, this sounds intuitive but it is most often forgotten by litigators. Many times, mediations become the same worn battlefield that the parties have been fighting over for quite some time. The same arguments that were made before and during litigation are made once again at mediation as though that will change the analysis or outcome.

Perhaps something else is needed?

The Extra Sauce

If you want to settle and to effect a compromise, you need to do different things. Unlike a trial which can be an all-or-nothing result, a settlement requires the parties to have a reason to compromise.

This means that the parties will have to have an honest exchange of information so they can make informed decisions. With information, the parties can do a proper risk analysis. Risk analysis will weigh whether the certainties of a settlement are better than the unknown factors present at any trial such as what evidence a jury may see or how they will evaluate it.

If you do not give the other side information that resonates with them, both in terms of being reliable, provable, and believable, they will have no reason to compromise. Ambiguous or vague statements without support will not get the job done. This has to be an exercise in show and tell. At this critical stage, withholding important information and saving it for a trial will most likely get you that wish, a trial.

Change the Perspective

A simple change in perspective is all that is needed. Put yourself in the shoes of the other party and even perhaps in the shoes of the jury, and ask what would be persuasive to change their mind on issues of liability and damages. Seeds of doubt and fear supported by evidence and the arguments that will be made to the jury will move the needle, not idle threats.

Instead of thinking and repeating just how great your case is, perhaps consider what things the other side should be concerned about. Better yet, think outside of the box and consider what things have not yet been addressed in the case that could totally change the outcome.

Finally, do not forget to address how the case, the witnesses, and evidence would most likely be viewed by a typical juror along with how their normal and common experiences, biases, and prejudice could turn the tables on the case.

The Takeaway

For the purposes of preparing for mediation, adjust your intention to form a strategy for how to settle the case. At this point, you have already formed an intention for how to win the case at trial.

The two intentions for how to settle the case versus how to win at trial can be very different. Often, litigators will forget to adjust their intentions at mediation and will use mediation as a dress rehearsal for trial. That could be a lost opportunity and simply adjusting your intention to settlement will not require a whole lot of extra work.

In fact, you may very well find that the exercise of adjusting your intention to settlement could provide new strategies and themes for trial that you never considered before. Switch that perspective and see where it takes you.

Stay well,

Patrick Russell

Miami Florida Mediator

Meaningful Mediation is Ethical, Mindful, and Strategic

meaningful mediation

#mediation #adr #disputeresolution #mediationtips

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Updated: Dec 9, 2021

We are at least eighteen months into this grand experiment of conducting remote mediation settlement conferences. Pardon the pun, but let that settle in for a minute. This means that for over a year and a half, we have been using dispute resolution processes in which no one is physically present.

Initial Resistance

Naysayers did not think this was possible or would work. Traditionalists argued that you need a physical presence of the parties, a human connection, to effectively resolve disputes. After all, how else could you gauge body language, intentions, and sincerity? It was also posited that physical presence, the expense, and the commitment required for the same, was the only way parties would take dispute resolution seriously.

Of course, there were some initial bumps in the road when remote mediation began. Zoom bombing from unauthorized users. Confidentiality concerns. Technical glitches. The general inexperience of users while becoming accustomed to the new platforms.

Natural Evolution

I think we all would agree that the initial growing pains for remote mediation have mostly been overcome. The digital platforms have been updated and improved to address access and security concerns. There can be no doubt that these platforms will continue to improve over time as the developers have an obvious and financial incentive to grow these services.

Likewise, these remote digital services are widely and easily available to almost everyone that has either a mobile telephone or internet connection. As a result, many users have been using digital platforms regularly not only for business but also to maintain social connections with friends and family.

As with any technological evolution, the benefits are enormous. Typically such innovations increase access, convenience, and efficiency. Horses to the combustion engine. Trains to planes. Paper to digital images. Vinyl records to mp4 files. Typewriters to word processors and computers. The same now applies to in-person mediation versus remote mediation.

The Benefits of Remote Mediation

Remote mediation checks off all the boxes for improved access, convenience, and efficiency without affecting the effectiveness of the dispute resolution process.

There can be no doubt that remote mediation enhances access for participants to attend mediation. Mandated in-person mediation presents challenges in terms of transportation and allotting sufficient time to be away from the office or home to attend an in-person mediation. With the relative ease of connecting to remote mediation, nearly everyone can now easily attend mediation from almost anywhere without any significant inconvenience.

Efficiency both in terms of time and cost is also a hallmark of technological innovation. Remote mediation is no different in that there are no extra costs for a party to attend a remote mediation since they are routinely hosted by the mediator. This means there is a saving in travel expenses, transportation, hotels, and even parking for all parties. The benefits are even greater for lawyers, institutional clients, or insurance companies since they can attend multiple mediations in a single day in different cities, states, or even countries.

Finally, the effectiveness of remote mediation has yet to be seriously challenged. I have not seen any studies that suggest a remote mediation impedes or detracts from having an effective mediation.

Through remote mediation, you are still able to see the faces of the participants to gauge their attention and reactions during the settlement conference. Communication is also not hampered as joint and private sessions work perfectly fine during a remote mediation when breakrooms are properly set up.

Finally, mediation presentations whether through the showing of photos, videos, Powerpoint slides, or even computer simulations can all routinely be handled with the share screen options of a remote mediation. The only thing you are truly missing from a remote mediation as compared to an in-person mediation is the occasional handshake, donuts, or bad coffee.

The Takeaway

Remote mediation is not the future, it is the now. We have been testing remote mediation settlement conferences for at least the past eighteen months and they have been proven to work. For all the right reasons, remote mediation is here to stay because it is effective, cost-efficient, and provides greater access to dispute resolution.

Stay well,

Patrick Russell

Miami Florida Mediator

Meaningful Mediation is Ethical, Mindful, and Strategic

meaningful mediation

#mediation #adr #disputeresolution #mediationtips

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