In most substantial cases, mediation is the only road to settlement. Highly successful trial attorneys, Roger and Larry Booth, offer you these tips for getting a healthy settlement offer through mediation. You’ll find a wealth of additional advice for maximizing the value of your personal injury cases in their book, Personal Injury Handbook.
Choose the mediator carefully. Agreeing to the first mediator proposed by the defense is almost always a mistake. It is a give-and-take process, which often takes weeks. Just as the key to winning a jury trial is choosing the jury, the key to successful mediation is choosing the mediator. Take your time and ask around.
Be “trial ready” at the mediation. This might mean bringing blow-ups and video displays to show to the other side and the mediator. Keep in mind that the insurance company representative is having a first opportunity to size up how the case will sell to a jury and, just as importantly, to size you up. Lay out the case like a combination opening statement and final argument. Bring enough of the file to impress the other side that you are so prepared you can pull documents and testimony out at a moment’s notice.
Don’t shy away from talking directly to the defense. More and more mediators are dispensing with the opening joint session. It’s not uncommon to go through an entire mediation without ever seeing the other side. This may not work to your advantage. A strong presentation to the insurance representative can be the key to settlement. Don’t be afraid to insist on the opportunity to talk directly to the other side. Until the mediation, they have been getting all of their information filtered through the defense lawyer. They may not appreciate how strong your case really is or how committed you and your client are to seeing it through unless the settlement is at an appropriate level. The joint session may occur at the beginning of the mediation or perhaps in the middle, when the process has reached an impasse.
Admit weaknesses in the case from the outset. Admitting the weaknesses in your case during mediation helps convince the defense that you are prepared to face those shortcomings at trial and win the confidence of the jury.
Don’t reveal your bottom figure too soon, even to the mediator. A critical question is how frank to be with the mediator. In the first private session, most mediators will ask you for a bottom figure to try to get you to reduce your demand. No matter how much you trust the mediator, never reveal your bottom figure this early. It is only human nature for the mediator to assume that your “bottom line” figure is still inflated and that if the other side is very hard-nosed, you may be willing to go lower. Always hold back some room for negotiating, even with the mediator. Don’t be afraid to refuse to drop your demand if the opening offer is too low.
Be patient. Most large cases do not settle quickly. It may take more than one session. No matter how high-placed the insurance representative may be, his authority is probably limited, and he will probably need to consult with his boss or even his boss’s boss in order to get the case settled. Your client should understand that as well and not get her expectations up too high. The first mediation session should be scheduled far enough in advance of the trial to allow for a second session. Figure out in advance your true bottom line and keep your eye on that ball. Don’t move closer to the final figure at a pace greater than the other side is moving or the settlement, if any, will be too low.
Leave the client in the hall. Mediators who still do an opening session often want the plaintiff to sit in. Resist. Your client may take umbrage at defense comments and her anger will create an impediment to settlement. In addition, your client may not understand why her lawyer is candidly admitting weaknesses. Often, a better approach is to arrange a brief “meet and greet” between the plaintiff and the defense representatives. The defense lawyer will have probably already met the plaintiff at her deposition, but this may be the insurance representative’s only opportunity to do so, and if your client makes a particularly nice appearance, you should not miss the opportunity to put a human face on your case.
Larry Booth, a member of the Inner Circle of Advocates and founder of Booth & Koskoff, has written hundreds of articles in various legal publications providing attorneys with practical guidance on the secrets to success in the personal injury field.
Roger Booth, a California “Super Lawyer,” has handled more than 20 cases that have resulted in verdicts or settlement in excess of $1,000,000. He is a frequent writer and speaker on personal injury practice and trial tactics.