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
