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Keys to Success at Mediation

A mediator recently told me a successful mediation ends in a settlement with which neither party is very happy. This is because the defense feels as though they have paid too much for settlement and plaintiff believes that he has lowered his demand too far. Whether or not the parties are entirely happy about all of the terms, settlement at mediation is always a cause for celebration.

If done correctly, mediation can bring the parties together to negotiate terms all parties can accept. While the strategy for the day of mediation is important, several steps can be taken prior to mediation to ensure successful resolution. Critical steps such as having key parties present, confirming demands and settlement negotiations, and providing a mediation brief can impact the success of mediation prior to the big day.

Arrange to Have Key Decision Makers Present

An essential step to take before mediation is arranging to have the key decision makers present. It is essential to have the plaintiffs available. From a defense perspective, this often involves having an adjuster present representing the insurance company on the file.

If the adjuster cannot personally attend, then defense counsel must be sure to obtain settlement authority in advance of the mediation. The fact that the adjuster will not be attending should also be communicated to opposing counsel prior to mediation along with an assurance that this ability to settle will not be affected by the adjuster’s absence. This will manage expectations in advance and ensures negotiations start off on the right foot.

Confirm Demands and Status of Settlement Negotiations Prior to Mediation

Taking the time to confirm the settlement demand and/or the status of settlement negotiations prior to mediation will help establish the parameters and goals for mediation. This small step will also cut down on misunderstandings or miscommunications that can bog down negotiations and slow progress at the outset.

It is also important to confirm if there are liens on the file prior to attendance. Confirmation of this information should be done in writing prior to the date of mediation.

Provide a Mediation Brief Prior to Mediation

Counsel should also prepare and send a mediation brief prior to the mediation. The length of the brief will vary based on the complexity of the matter, but the key is providing the brief prior to arrival. A common mistake cited by mediators is handing the brief to the mediator at the start of the session. The mediator does not have time to review the brief and absorb the important information on the day of mediation.

Prepare for Mediation Downtime

Once you arrive at mediation, bring your patience. There is always a lot of downtime. It is important to prepare clients for this reality. It is helpful to tell them to bring reading material and activities for distraction while the mediator is with the opposing party. For defense counsel, it is important to remember plaintiffs sometimes feel that they need their “day in court.” The process of negotiating may seem routine for defense counsel, but it is far from routine for plaintiffs. Sometimes it is the process and having someone listen to their case that sets the stage for settlement.

Confirm Mediator Follow Up

Even if the case does not settle at mediation, the matter may settle with follow up completed by the mediator. Some mediators include this in their initial invoice. It is important to confirm your mediator is willing to complete this follow up as necessary to work toward a successful resolution.

ABOUT THE AUTHOR: Jillian Fairchild specializes in insurance defense, personal injury, professional liability, and general civil litigation. Contact her at 858-263-4065 or jfairchild@tysonmendes.com.