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Preparing for a Successful Mediation

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Preparing for a Successful Mediation

In this class Monty McIntyre, a seasoned Mediator, Arbitrator, and Referee at ADR Services explains how to effectively prepare for a mediation, how to conduct yourself during the mediation session, and what steps should be taken after the mediation. Your goal as a lawyer should be to give your client the very best opportunity to successfully settle the case during or after the mediation.

Presenters

Monty McIntyre
Mediator & Arbitrator
ADR Services

Transcript

Monty McIntyre: Hi, my name is Monty McIntyre, and today I'm going to talk about preparing for a successful mediation. Now, Abraham Lincoln said many things very well. And one of the things he said about settlement, which I would apply to mediation is this, he said, "Discourage litigation. Persuade your neighbors to compromise whenever you can. As a peacemaker, the lawyer has a superior opportunity of being a good man. There will still be business enough." And what Lincoln said in his day is still true today.

   So a little bit about me as we start on this discussion: my name is Monty McIntyre. I've been a civil trial attorney in California, in San Diego, since 1980. So I've been doing this for quite a number of years. Most of my career, I was a civil trial lawyer trying a lot of different cases for plaintiffs and defendants, whether it's business, real property insurance, bad faith, personal injury, medical malpractice, or other kinds of claims, like land use.

   So I learned first about mediation in about the mid early nineties, and I was doing some work as an arbitrator at AAA in San Diego, and they trained a number of us in mediation. I thought it was terrific. It was about a four or five day training, intensive training, and I learned how to mediate, help me make me a better attorney in trying to settle cases for my clients. And so that was very helpful.

   And over the years, in addition to using mediation to help settle my cases, starting at about 2001, I started to very regularly mediate part-time. I got on the local San Diego Superior Court panel and started helping people settle cases in a lot of areas as a mediator, and then starting in about 2013, I shifted so that became my full-time work, doing mediation arbitration and referee work. So I was doing ADR services. So mediation is the biggest part of what I do, and what I hope to do today with this discussion is to give you some ideas and to give you some pointers that will help you prepare for and then have a successful mediation.

   Now, one of the things that you want to do in order to be ready for a mediation is you really should be prepared by conducting enough discovery. One of the things that I've seen in a lot of mediations is parties haven't done much discovery. They maybe have tried to save costs or expenses, and while I can understand that, it also makes it difficult to try to settle a case because you really don't have all the information that you're going to need to evaluate the case for settlement purposes. So in order to get ready for a mediation, first you really need to try to get all the basic discovery completed.

   And that means you need to send out your initial interrogatory requests. You need to send out and serve your initial request for production of documents. If you're going to send a request for admissions, you can do that as well. Then you need to get your documents and analyze them, and then after you have gone through the documents and you really have the complete set of documents that you need, then you need to start taking some depositions of people who are the parties in the case. And you want to go through the factual witnesses.

   Very often in mediations, you may not have yet disclosed expert witnesses, and so what you want to do, if you don't have the expert information yet, is you want to have your percipient witnesses pretty much deposed, or if they haven't been deposed, you should have interviewed them because this is going to allow you to really understand what are the factual issues, what are the documents tell at you, and what will the testimony of the witnesses be and how will it differ, where will be the areas of dispute and contention.

   So you want to get this basic discovery done, and only by doing this kind of discovery will you be able to get to the place where you can realistically evaluate and assess the strengths and weaknesses of your case, because there are a lot of different things can factor into that. I mean, how do the witnesses come across? Do the witnesses in depositions make great witnesses? Do they make terrible witnesses? Who makes the best witnesses, the other witnesses for the other side or your witnesses on your side? Who has the best credibility? Credibility is key in front of any jury, and it's key in front of any judge, if it's a judge trial. So you want to try to assess these witnesses and see how they do, and the only way you can really do that is by taking depositions.

   You can get some sense of it if you interview them, but you really want to take the time and go through the process to do the depositions, get an evaluation of the witnesses, and you can then have the ability to tell the mediator how will this witness do on the witness stand, because you've either examined them or tried to rehabilitate them during a deposition.

   Now you also want to try to make sure that you analyze all the strengths and weaknesses in the legal analysis of your side of the case and the other sides of the case. There may be one other side, there may be multiple sides. But I've never really seen a case in all my years, since 1980, where one side has all the good evidence. Everybody usually has some good evidence, and the question is how much good evidence do you have and how much good evidence does the other side have?

   Now, one of the things I'll tell you in preparing for a mediation, and this is going to help you in other aspects of preparing your case, how the main parties come across, the plaintiff or the defendant, how they come across as witnesses, if they're really likable, if they're really believable, if they're really straightforward and honest. I mean, a great plaintiff like that can really make a case very valuable, and the same kind of a case, let's say it's an injury case where you have a terrible plaintiff who makes a terrible impression, maybe have the same serious injuries, the value of that case is much less because a plaintiff is not going come across well, and it's going to be a problem with the case.

   So you want to try to analyze all the documents. You want to have obtained the critical discovery you need to take. If there are expert issues, even if you haven't disclosed the experts, you're going to want to have discussed with your own experts what their views are. And you may have to spend a little bit of money to get some preliminary opinions, but then you should be ready to talk about what are the experts going to be able to say. And you should be able to do that from a place of knowledge and not just guessing because it doesn't come across real well if you're in a mediation talking the mediator and you're really guessing. And the mediator can start to figure that out.

   So before the mediation, in addition to assessing the strengths and weaknesses of your case and the other party's cases, you also should sit down and you should have a very heart-to-heart discussion with your client about the realities of taking a case all the way to trial.

   Now it's true that most cases settle before trial. I think the general estimates would be maybe 95 to somewhat higher percent of the cases will settle before they go to trial. But the problem is you don't know which ones will settle and which ones won't, and the common problems that all cases have for all parties, and it's equally difficult for plaintiffs and defendants, are these basic four issues.

   Number one, the case is not going to be predictable. With all my years of experience since 1980, I cannot tell somebody with certainty, "Here's what the results is going to be." It just doesn't happen that way. No experienced judge can predict what a jury is going to do or another judge is going to do. No experienced lawyer can do that. And on top of that, even if the judge or the evaluating person has, or a lawyer evaluating the case has some sense of, well, I think we're going to do pretty well, and we may have a better than the 50% chance of winning liability or a better than 70% chance, nobody knows 100%. Nobody can say with certainty.

   And at the end of the day, all lawyers and all judges will agree that even the best case in the world, something that you think should be close to 100%, it could be lost 100%. Could go the other way. And the opposite is true. The worst case in the world, the case that you think would almost never win, there is a possibility that even that case, there could be a win by the other side. So unpredictability is the number one difficulty of going to trial.

   Number two, it's extremely expensive. I mean, if the parties are paying hourly attorneys fees, all the work that we have to do as lawyers to get a case ready for trial and to try the case and the enormous number of hours that you spend doing discovery, getting the pre-trial prep done, all of that, that costs tons and tons of money.

   And the costs are not inexpensive either. Experts are pricey. They cost a lot per hour. Other things have to be done, like you may be taking videotape depositions. You may be trying to recreate an accident. You may be doing an economic evaluation and assessment. All of those things cost money. All of those costs add up. And there's almost no case that will get to trial that's going to cost less than six figures when you talk about fees and costs, and the damages involved better justify the expense because it's going to be pricey.

   Now, the third thing that happens that's a difficulty for everybody is cases take an enormous amount of time. Now in the San Diego and California cases that I would see these days, it used to be before we had some budget cuts a number of years ago in California, we were actually getting our cases to trial about one year after the complaint was filed. But now with some budget cuts and now after the pandemic, we're probably going to be seeing at least a couple years from the filing to get to trial and maybe even longer.

   Well, not only do you spend a lot of time from the time you file your case till you get to trial, if one side wins and the other side appeals, you get to go to the court of appeal, and that can take another one to two years on top of those years to get to trial. And for the parties, it's not just the time from the filing of the complaint to the trial, it's also their personal time, because you need to explain to your client, they're going to have to help you prepare to get ready for trial. They're going to have to help you prepare in answering discovery requests. They're going to have to help you in maybe getting ready for expert depositions.

   You're going to have to prepare them for their depositions. You're going to have to prepare them for their testimony at trial. All of this time that they have to spend on the case is time they no longer can spend on either their personal life, home life, or their work life. And you know we all have a limited amount of time. So the fact that the case is going to demand a lot of their time and the outcome is unpredictable and it's very, very expensive, all those things together add up to a lot of stress, and people feel stress the whole time of the case.

   And one of the things you should talk to your clients about are these four realities of taking the case to trial, because if we can successfully settle the case during the mediation, then there's going to be closure. All the expense ends. There's certainty. You know what the result is. All the time requirement is gone, and the stress is gone as well. So you need to talk about these things with your client before the mediation.

   Another thing that you should do is you should discuss, if you're on the plaintiff's side of the case, you should go through and do an evaluation and talk with the client about strengths and weaknesses of the case. Be honest with them and start to educate them about the facts that you know, the other side could win on one or more issues, and you're not guaranteed to win on every issue.

   And discuss what you think a reasonable opening settlement demand would be for the mediation. And I suggest that you discuss it with them and explain that this is just an opening offer, but if you're on the plaintiff's side, you should get the approval of your client, and you should try to send a settlement demand to the defense or defendants well before the mediation.

   Now, in cases where there's going to be insurance coverage on the other side, or in cases where there are businesses and they may have to do some kind of internal risk assessment through various departments and go through different levels of the officers, they need more time to assess these things.

   So if you really want to have a meaningful settlement discussion at the mediation, then you want to send your settlement demand, your opening settlement demand, to the other side far enough advance that they have a chance to evaluate it and then really know what you're going to be demanding, know what your reasoning is, know what your analysis is. And then they can try to make their own assessment to decide what authority they're going to give, because you want them to come with the best authority possible so that you can have the best opportunity to settle your case. And so you should get the approval from your client to send that opening demand, and you should send your analysis and opening demand to the other side well before the mediation begins.

   Now another thing I suggest that you do with your client, and this is for plaintiffs or defendants, but probably more often it's necessary for the plaintiffs, is discuss the mediation process with your client. Now what's going to happen, most people have never been involved in cases before, and most people have never gone to a mediation before, and so they don't know what the process is going to be like.

   So you need to explain to your client that the process, if it's a half-day mediation is probably going to take about four hours, or if it's a full-day mediation, it could take eight hours or longer. And you have to explain to them that it's going to be, possibly to them, what may feel like a slow process. Now everybody's different, but a number of people that I've worked with over the years as a mediator, and even as a lawyer, when I've talked to them about what their expectations are, they very often think, "Well, we ought be able to work through a mediation pretty fast." And if their expectation is you're going to get something done in 30 minutes or an hour, they may be frustrated by an unrealistic expectation if you're going to spend a half day or full day going through the process.

   Now with defendants who are companies or people who have gone through mediations before, you don't need to worry about this as much as you would with the plaintiffs, but you still need to make sure that you talk about the issues and that they are ready to go and they understand it is going to take some time.

   Now on the defendant-side of the aisle, when you're talking as and preparing your defendant, one of the things that you want to do is you really want to try to make sure that your decision maker who's going to have authority to settle this case is going to be present. A lot of insurance companies will like to keep somebody in the home office who has the real authority and send maybe a claims rep or somebody who doesn't have the real authority, but they have some given authority.

   If there's any way on the defense that you can get your actual decision maker that you need there, that often is much more productive to try to help make sure that a decision is made when you get to that point. Now for defendants who have not been through litigation before, and who are not corporations who've gone through lawsuits before, you need to do the same thing as with the plaintiffs. You need to explain the mediation process. Explain to them that it's going to take some time, and make sure they understand that it's going to be a process. And I describe it as a dance, and each dance is different because the parties are different and everybody's going to move at their own speed. So you should try to get them ready and understand what it is that's going to be happening.

   Now before the mediation, and I certainly suggest that you try to do this several days, four to five days is great if you can do it, send your mediation brief to the other side and to the mediator. Now, a lot of attorneys these days still send confidential mediation briefs, only sending the brief to the mediator, and they don't send their mediation brief that's confidential to the other side. Well, the difficulty with this is the other side doesn't know what your analysis is, and they don't know what your position is, and it's going to be harder for them to be prepared to evaluate the case because they don't know what your analysis is. And this can be a problem for plaintiffs and defendants. So my recommendation, if you can do it, is try to send your mediation brief to the other side and don't make it confidential and try to make it short and try to attach only a few key exhibits. When I'm talking about key exhibits, I mean maybe five exhibits.

   It's very easy these days in the internet age to be able to attach hundreds and hundreds of pages of documents, and really it's not all that helpful because most cases you're only really going to have a few key documents. So my recommendation is try to limit your documents to five, and if you really have to go above five, maybe limit it to 10.

   Now, if you don't feel comfortable talking about everything and letting the opposing sides see everything in your brief, then my recommendation is write two briefs. Write a brief that you will send to the other side and the mediator, and then write a separate short confidential mediation brief that will just go to the mediator on select issues. And this will let the other side understand your analysis as much as possible, and it will help you have a more productive mediation session when you're there in person. So the all of that is a good thing.

   Now I also recommend that you have a premediation call with the mediator, and I always ask or encourage all parties to do this with me. They're not obligated to do it, but I think it's more helpful if they do. Sometimes there are some issues where the attorney may need some help with their client. Maybe there's some client control issues or the client is not very receptive to the attorney's analysis, and they may need your help as a mediator in trying to explain the realities and the risks of litigation to them.

   Sometimes there's some personality disputes or issues that you need to know about between the parties to the case. And then you can help try to navigate through those better by being aware of them. Sometimes there may be some issues where maybe in family situations where you've got fathers and sons or other family members, maybe there's been some bad blood because of this lawsuit, and there's a possibility of some reconciliation if you can find a settlement to the lawsuit. And sometimes that issue that's not directly involved in the lawsuit may become very important as a motivation towards people trying to find a solution.

   So you can discuss these things with the mediator before the mediation, and that's a great time to do it because it will help the mediator be ready to go, and they will be ready to try to get things done more efficiently. Now, one of the things you want to do when you get to the mediation and in your attachments for the mediation brief is really do some good analysis of the potential damages.

   So for example, in a lot of cases, it's very helpful if you can include as a brief, or an exhibit to your brief, some spreadsheet analysis of the damages. I mean, sometimes a lot of times damages may be some past damages, some future damages, some things that have to be discounted at present value, and you want to be able to assess all those different kinds of damages. And send a spreadsheet that will set that forth very simply and understandably.

   Now for the plaintiff, I've told you earlier that you should send a premediation demand so the other side will have time to evaluate it. One thing I want to have you be very careful about, please don't make your demand unreasonably high. One things that a lot of plaintiffs do, and it's not very helpful in a lot of cases, is they will come up with an idea of, well, I think our goal is to get X number of dollars for this case, and they will want to send at least some multiple of that as their opening demand. And the problem is the higher the plaintiff's opening demand is, and the more that demand gets into the range of becoming unreasonable or unrealistic or both, the worse the reaction's going to be.

   And you have the same problem with your initial demand. If you didn't send a demand before the mediation, and if you make your demand at the beginning of the mediation, you're going to have the same problem because if you make a demand that's excessively high, not really reasonable or realistic, what that's going to do is it's probably going to create a lot of emotional reaction. It'll probably cause the defendants to give you an unreasonably low initial offer that is lower than they would've gone. And you'll probably chew up an hour or two trying to get to the point where you could have gotten fairly quickly if you had started with a number that was high enough to give you plenty of room to negotiate, but it was still within the range of reason. And so don't get to an unrealistically or unreasonably high number.

   Same thing with defendants on the other side. It's far less common for the defendants to make any kind of a premediation offer unless they've had some negotiations back and forth with the other side, and that's fine. But if a defendant wants to make a premediation offer, don't make it unreasonably low or unrealistically low. So you're going to create the same kind of problems on the other side if you do that, that the plaintiffs create if they're way too high.

   So another thing that you should be thinking about before the mediation is think about are there any cultural or gender differences that you may be dealing with in terms of the people in the other room? So for example, if somebody comes from a culture where you would really never be direct, and Japan's an example of that, you may not get the kind of a direct answer that you would think if you are only operating from the American, kind of an English American very direct language response.

   So think about these things. Are the people on the other side, are the decision makers or are the parties, are there either cultural or gender differences that you have to be aware of? And it's good if you try to understand those, and if you've done your discovery, and if you conducted enough discovery to really assess who the witnesses are and what the documents are saying and who's involved, then you should be able to have some intelligence on these issues and you can come to the mediation prepared to talk about these kinds of things.

   So now the next issue we're going to talk about here is the, if you want to make a goal for the mediation, and most parties do, most plaintiffs will try to sit down and talk with their clients and say, "Well, we're going to try to get a successful result if we can get X number of dollars," and they'll set some kind of a goal. And the defense will very commonly do that as well.

   It's okay to have a goal before you begin the mediation. But one thing that I would want to caution you about is don't let your client get stuck on the fact that that goal is going to be immovable. It's extremely common, in my experience having conducted many, many mediations, over a thousand mediations, that it very commonly happens for there to be a settlement, the parties very often have to get to what they thought was going to be their bottom line or top line, and they have to move past that to some degree.

   And so while setting goals is good, and while it's worthwhile and smart to have a discussion of settlement value and things like that with your client before the mediation, don't let them get the idea that this goal that you set is somehow stuck in concrete. You have to take in the information that comes in during the mediation. As a mediator, I'm constantly learning information from the different sides, and I'm passing it along as they let me. And they're learning information too.

   So don't get stuck in getting stuck in a place where you're going to say, "Hey, I'm not going to change because my evaluation is a little different than what I thought." And you often have to stretch to find that page where everybody can agree to settle the case.

   So now let's talk about some of the things that you should in mind when you get to the mediation and we're actually at the mediation. One of the things that I would suggest that you do as counsel is it's very, very common... Now in the last year plus we've been doing a lot of mediations all by Zoom because of the pandemic, and we'll be going back to doing in-person mediations, so I'm going to talk about that as well. So in many in-person mediations, what's going to happen, at least in California, is you're going to be put in separate rooms generally, but it's a good idea regardless of which side you're on, that even if you're in a separate room, you might want to go to the other conference room that other people are sitting in, introduce yourself.

   You probably know the opposing counsel, but if you don't, introduce yourself to them. Introduce yourself to their client or their representative, and just say hello. And that's something that is a good thing to do because you're kind of putting a face with your side of the case, and that may help later on in your discussions. Now also on the day that you go to the mediation, even though it joint sessions are generally pretty unpopular among attorneys, and most attorneys, at least in California, don't really want to have a joint session, there can be some benefits, and doesn't have to be at the beginning of the case, but there can be some benefits in the right circumstances where the other side, some of the people in your room, might be able to meet and hear from one of the other parties.

   Sometimes when the lawyers are transmitting the information in their reports, they're certainly filtering things and trying to provide accurate information. But very often, if somebody who's a decision maker in your room doesn't really know the people of the parties in the other room and they get a chance to hear them tell some of their story or hear or them express themselves, that can make a big impact. And so, while it's fine to be leery of having joint meetings at the beginning and all of that, there can be times and places where meeting the other party in a setting that is safe and kind of a controlled setting where the mediator's making sure it's going to be productive, that can be very helpful.

   Now when you're talking to the other lawyer or the party if you get a chance to in the mediation, and there may be times where the mediator will draw you into separate room with just the council where you guys can talk about some of the issues, see if you can narrow down some of the disputes and try to maybe make some further progress, but when you're talking to the other lawyer, even if you disagree, my recommendation is always be professional.

   Always be courteous. Always be respectful. Always be considerate. That's a good thing to do. If you are abrasive or if you are difficult or if you are somebody who really is loud and angry and argumentative at all times, that may actually set the other side or the other attorney against you and may be counter to convincing them to try to help find a solution.

   So when you're at the mediation, and we've talked about this a little bit earlier, one of the things on the day of the mediation, when you are the plaintiff, please, please, please do not make a crazy high opening demand that is either unrealistic or unreasonable or both. All that's going to do is create a lot of turmoil and consternation in the other room, and it's probably going to get you one to two hours behind where you might be able to go otherwise if you were more in a reasonable or realistic range.

   So try to start off, give yourself plenty of room to negotiate, but just don't go into a crazy high place. And likewise, on the defendant's side, please try to resist, even if you think the plaintiff made an unrealistic demand, please try to resist the inclination to punish the plaintiff's conduct by making an unreasonably low offer.

   What I often do, if the people on the defense side believe that there is an offer that is unreasonably high on the other side, my recommendation to them is look, let's talk about what you think would be a more realistic or a more reasonable opening offer. And so we'll talk about that. And then I'll ask them a question and say, "Okay, if you had gotten an offer in that range, what would you be inclined to offer as your initial offer?"

   And we'll talk about that. And usually that's a higher number that they're thinking of because they want to punish the plaintiffs for this what they think is a crazy offer. Well, my recommendation to the defense, which has turned out to be very, very helpful when they follow it, is look, let's try to avoid the punishment and instead, why don't you make an initial offer that will be what you would've been willing to make if they'd made a more realistic demand.

   And by doing that, you'll keep the mediation more efficient. You'll keep it on track because if you go real, real low, you're going to create an emotional response from the plaintiff's side. And once again, you may create a bunch of stuff where we need to work for an hour or two to get to where we could get in the next 20 minutes if we weren't dealing with these kinds of things.

   So I think it's good for both sides to try to avoid being unrealistically high or low and to try to really get in more of a reasonable range, giving yourself enough room to negotiate from the very beginning. Now, one of the things that a lot of lawyers don't like to do on the mediation day is they really want to try to talk most of the time, and they really don't want to let their clients talk. And in my experience, this is a mistake. You really should let your client talk, unless it's an institutional client and they've gone to hundreds of mediations and they don't really need to do this, but so many parties, whether they're plaintiffs or defendants, have never gone through a lawsuit, have never gone through a mediation, and one of the things that happens is they want to be heard.

   They want their story to be heard. And one of the important things that I recommend that you do as the lawyer is let your client talk and vent directly to the mediator, especially if they have some emotions and issues that they need to let out. Let them talk, let them vent, let them be heard. Let the mediator deal with this. In fact, early on in almost all mediations, I'm trying to look for these kind of emotional issues, because I want people to be able to vent. Because only if they've been heard, only if they're allowed to vent, only then can they start to move to being able to work on resolving a problem and finding a solution. If we don't let them talk, if we don't let them be heard, if we don't let them tell their story, they're never going to get there.

   And this is something that I think a lot of people miss. We can't just cut right to the legal and factual issues. We really have to let people tell their story, and we have to let them vent their emotions. And this is quite important. So don't try to lock up your client, and don't try to prevent your client from talking. Your client needs to feel that they have been heard, and we need to let them release all their emotions that they are feeling about this claim.

   I mean, it could be the plaintiff feeling emotions of the bad thing that happened to the plaintiff. It could be the defendant feeling emotions of feeling that they've been unjustly or unfairly charged with doing something wrong that they don't think they did. So let your client talk to the mediator. Be helpful in letting your client talk. Let them speak in their own words.

   You've got the protection of confidentiality. So you don't have to worry about your client saying something that's going to hurt them, and they are going to be really better prepared to work on settling the case if you let them do that. So please, please let them do that.

   Now realize there are both evaluative and facilitative approaches to dealing with mediation, and the facilitative are going to be dealing more with the emotions and things like that, and I think that's helpful. It would be unwise to only do that because you also have to deal with the legal issues. You have to be able to do some assessment of how juries or judges might react to the various questions they have to answer and the legal issues they have to decide. So the evaluative approach is also important, and some people as mediators get training only in the facilitative approach, only dealing with emotions, only dealing with letting people share their emotions. And that's fine. But for litigation, it's all not that helpful.

   You have to let the emotions out, but you have to be able to deal with both facilitative and evaluative issues, and you need a mediator who can do both for you. So be prepared to not only let your client vent and speak and be heard, but also be prepared to talk about the legal issues, know what the issues are, be prepared with any authorities you need to have, whether they be jury instructions, whether they be case law, whatever. So that's important during the day of the mediation.

   Another thing that's extremely important during the mediation is you need to be patient. You need to be patient because each mediation is its own unique dance. There may be similarities between different mediations, but just like every couple who dances, the people are different and the way they dance is different. It's true that every grouping of parties in a lawsuit, in a mediation, these people are different.

   The lawyers are different, and the way they'll interact with each other, it's all unique to that group. So mediations will take their own time. Some parties and some groupings will be able to do things and process things faster, but some will need more time. And they will have to process things more slowly. And the important thing for you as a lawyer is to be patient, understand this is a process and it's a unique dance, and also educate your client to be patient because it is a process and it is a unique dance. And that's something that you need to understand.

   Now, another thing that we want to think about during the mediation, one of the things that I see lawyers doing all the time, and this is from the very, very big beginning of the case, lawyers are constantly looking at the midpoint between the current demand and the current offer. And in fact, most plaintiff's lawyers are thinking about the midpoint when they make their initial demand.

   Let's say a plaintiff thought a case was worth a million dollars, but they made an initial demand for 10 million. You know, a lot of them are thinking that, "Well, my midpoint is going to be 5 million. If I start at 10, then I get a better chance of getting a result that is better." Well, if that $10 million demand is unrealistic or unreasonable under the circumstances, it may backfire and hurt you. So you got to be careful. You can't just pick a high midpoint because you want to try to get there. You have to make sure the number is realistic and reasonable, and you have to go with that. But both sides tend to overly caught up in the midpoint analysis. And so let's say a plaintiff says, "I want a hundred thousand dollars" on a case.

   And a defendant says, "Well, we'll offer $10,000." And so you got a $90,000 spread. And that means the midpoint is about 55,000 based upon the offer, the demand. Well, the midpoint is just some information. A midpoint is not certainty about where the mediation may go. So don't get caught up in the midpoint analysis. You should watch the midpoints, and you should be aware of them as the mediation goes. But what the midpoint is is if it's the midpoint between the two current numbers, all it means is it is a suggestion that it's possible the parties may be able to get to that middle number in a settlement. Now, the reality is that any one of the sides, plaintiff side or defendant's side, they can stop before you get to that midpoint. They can put on the brakes, as I call it. So the midpoint provides you with information, but the midpoint does not provide certainty. So don't make the mistake and assumption that it does.

   Another thing to realize during the mediation is every move will create a reaction in the other room. We've talked about that earlier with the initial moves. If you're unrealistic in your initial move, you're going to maybe upset the other side, and they're going to try to punish you. Everybody's move creates a reaction. So with each new move that you make, and a lot of this is horse trading and we're going back and forth and we're using numbers, with each new move, you want to try to create as positive a reaction in the other room as possible. You want to keep them talking. You want to keep them negotiating. You want to keep them moving because that will get you closer and closer to that page where everybody can hopefully finally agree.

   Now, a tool that can be very effective during a mediation is to use bracketed offers. Now a bracketed offer is really not a firm offer. I mean, if you say I'll demand a hundred thousand, then you're demanding a hundred thousand. But if you say I'll go to 200,000 if the defendant goes up to 50,000, you're not really saying that you've gone to 200,000, but you're saying here's where you're willing to go if they're willing to go up to this number.

   So brackets can be helpful to close the gap when you're having difficulties, and whenever somebody proposes a bracket, you can look at the midpoint between the numbers in their bracket. So whatever the plaintiff is going to go down to and whatever the defendant is going to go up to, then you can figure out what's the midpoint of that bracket. And that midpoint, again, is a potential or a suggested possible place the person offering that bracket might be willing to go to settle a case.

   So if the plaintiff's making a bracket, the midpoint of their bracket is a potential place that maybe they might be willing to go to. It's not a guarantee because they can stop before there. They might say, "Nope, our bottom line is still above that midpoint." Or if the defendant is making the bracketed offer, the midpoint is a suggested place where possibly the defense might go to settle a case. So it's information, but don't get caught up in thinking it's going to give you certainty.

   And one of the things I suggest strongly that you not do in a mediation is for the plaintiff's side, there are lots of ways that people will start saying, "Well, we're getting closer to as far as we can go. We don't have a whole lot of room." And it's fine to say those things like that. But the one thing I caution you about is do not say that a number is your bottom-line number unless you really, really, really, really mean it.

   Because if you're the plaintiff and you say something is a bottom-line number, there's a very good chance the defendants might test that by saying, "Nope, we're not going to accept that" and offering you something lower. If you have said it's your bottom line, even though this is a mediation, even though it's confidential, word may get around that you as an advocate don't really mean something when you say it's a bottom line. What you want do is you want to use bottom line very sparingly.

   You only want to use it when it's actually your bottom line, you won't go penny lower. And I suggest that should be relatively rare. You can try to use a lot of other language that's not quite saying it's your bottom line but is suggesting it. But really I've only used bottom line in my own negotiations very few times because I don't want to get stuck in that trap.

   Now, same thing with the defendants on the other side of the aisle. Don't say that your number is your top offer, unless you really mean that. It's quite common later on in mediations for the defendants to say, "Well, we're getting closer and closer," and then at some point they will say, "Well, this is it. This is all we've got. This is our only authority. And this is our top dollar." And if it is, and if you really aren't going to have any other authority or if you don't have the ability to make a call to a home office to try to get some more authority, don't say it's your top offer.

   Just say it's the best we can do at the time. This is the only authority we've got right now, blah, blah, blah, blah, blah. But you can expect that many times plaintiffs will test it if you say it's your top dollar. And if it isn't, once again, word will get around, and this may be difficult in doing future negotiations. Now, if you are in the negotiation process and if you are not getting quite there yet, and there is still some kind of a gap, whether you are a plaintiff or a defendant, you should have thought ahead about, look, if we can't get the number that we are going to suggest as a top or bottom line number in our own analysis, and if we're not willing to bend and try to go a little further, are we going to want to send a 998 offer out?

   And this is a California statute. There's probably a statute like this in your court if you're outside of California, but it's Code of Civil Procedure 998. Because if you send a 998 offer and the other side rejects it by either silence or letting the time go by, then there may be some consequences, whether it's interest or expert fees or other things that are either allowed or disallowed.

   So if you're planning on sending a what I would call CCP 998 offer if the case does not settle, then my recommendation is during your mediation, at least as the last offer that you're willing to make, go ahead and make that 998 offer. Because you're going to send it out anyway in the mail and they're going to have 30 days in California to respond to it. So go ahead and make that offer. Don't don't make a higher or lower number than your 998 and then only send it out later.

   Go ahead and make that best number you're willing to offer for. And then if they don't take it, you can still send the 998 out. Doesn't make sense to hold that back. Now, one of the other things that I suggest that you do early and not at the first move or the second move, but earlier on in the day, start adding into the negotiation any essential terms that you guys think you're going to need in your side of the case, because what's going to happen, these things could be things like maybe you need confidentiality. Maybe you need a non-disparagement agreement. Maybe somebody's going to need to get job references if they're looking for jobs in the future. Maybe there's going to be some desire for a stipulated judgment in case the settlement payments are not made. Maybe there's going to be some withholding of payment to a plaintiff from the damages because it would be partly payment of wages and withholding would have to be made.

   Any of these things that are really going to be of central terms, start talking about those before you get to the very end. You don't want to get to the end and say, "Hey, we've got an agreement on the number," and then somebody says, "Oh, by the way, we have to have confidentiality" because it's very common for the plaintiffs to say, "Well, you never raised that and that's going to cost you more money." So what you want to do is start throwing in any essential terms at least several moves before you're getting close to the end.

   You want to put them in the mix. You want to get those discussed. You want to have those considered. And then when you get down to the point where we're trying to make the final move and try to get to that final place, now all the essential terms have been dealt with.

   Another thing that I think you should do in your mediation, and I don't see this as often as I think we should have it with the ease of computers these days, is bring a draft settlement agreement with you. Now, mediation companies like I work with ADR services in San Diego and throughout California, and we have agreements forms that can be filled out pretty quickly that can be admitted into evidence in court and that are going to deal with the California requirements for mediation and confidentiality and proving up a settlement. But it's good for you to bring a draft settlement, whether you want to use one of those forms that we could provide, or whether you actually bring a longer form settlement agreement and you've got it pretty much drafted up and then you're just going to have to put in the terms as far as dollar amounts or anything else.

   So bring because if you have that with you, and then when we get to the point where it looks like we have an agreement on all the basic terms, then it's going to be very easy for you to prepare a settlement agreement. And if you actually have the long-form settlement agreement, how great is that to be able to just get it finalized, prepared, approved by all the counsel and then signed by everybody. And now you've got an enforceable settlement agreement, and you are walking out the door with something that's very valuable. You're not going to take the risk that you make a deal in principle and things fall apart. Because a lot of times parties leave the mediation, they go home, they get settler's remorse, where they talk to a husband or wife or cousin or whatever.

   And they say, "Well, heck, I got this friend who got more money than that." And then all of a sudden they don't want to do the deal that they took you hours to put together. And you don't want them to have settler's remorse. You want to have an enforceable agreement that is going to be able to be proved in court, and if you can bring your own long-form agreement and then finalize it, that's great.

   Now in terms of after the mediation, let's say you don't quite settle the case. Let's say you still have a gap. Well, one alternative you might want to try is you might want to have the mediator do a mediator's proposal. Whatever your gap is, the mediator can then reflect upon the case and try to come up with a number that they think might be accepted by all the parties or whatever the proposal is, whether it's one number or multiple numbers, depending upon the parties and the issues. So think about a mediator's proposal because that may be very helpful and you may be able to get your case settled.

   Now after the mediation, if the case hasn't settled, even if you had a mediator's proposal, then go ahead send out your 998 offer if you're going to send it. Just get it out and then set that thing up for your client. Now, a lot of times you're going to be conducting further discovery. Let your mediator know about any significant new developments. Maybe something comes up, an expert discovery that really changes the issue, something good or bad. Maybe some other development occurs. Maybe there's some case law changing what's going on.

   Keep discussing the settlement with the mediator and the other parties. Be honest with your client after the mediation about those issues of trial, the unpredictability, the uncertainty, the enormous cost, the time commitment, the risk of trial. Stay professional and courteous with your opposing counsel, even after the mediation because you may be negotiating a final deal with them in the future. And keep that relationship on good terms. And realize that you can still settle the case even during or after the trial, because you never know when a case is going to settle. You just never ever know.

   I've had a case where we tried a case for many, many days, and before the case went to the jury, the case settled. We got to the point where we were able to get the case settled. I know of other cases where the jury was out and was deliberating, and the parties continued to negotiate. And sometimes cases are settled during jury deliberation before the jury comes back. So you never quite know what is going to happen.

   And what you should do is if there is an important new development and you let your mediator know, that's a perfect time for your mediator to contact the other parties, try to see if there's some new stimulus to move towards a change of the position, maybe decrease the gap that you had during your mediation. And it's very often true that you can find a settlement down the road with some of the new wrinkles that come up in your discovery in the case.

   And so that can be extremely valuable. Keep your mediator posted. Keep being willing to work on settlement, and keep trying to make sure that you can get this thing done. If you keep those lines of communications open, if you're professional and courteous, you're not giving up on your case, and you're still going to be a good advocate fighting for your client. But, you're going to keep those lines open.

   Now, remember also, if you are able to negotiate a settlement after the mediation is over, make sure you document that settlement. Make sure you make it enforceable and admissible in court. Now, in California, and probably in most states, you could put a settlement on the record in front of the trial judge or in front of the judge assigned to the case, and that can be an enforceable settlement. Or you can have a settlement agreement that's written up and has all the requirements of admissibility. So make sure you do that, and don't ever, ever give up.

   So those are my tips on how you prepare for a successful mediation. I wish you all the best. Thank you for attending this program. Bye bye now.

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1h 09s

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