Here’s what I’ve observed about lawyers who mediate well: most good attorneys gauge the value of their case as soon as it falls into their lap. Before opening statements even exist in their minds, seasoned lawyers count the cost of injuries, damages, and discovery at multiple check points along the way. Facts and theories are scrutinized and filtered through legal cheesecloth until it expels this abstract concept called “value,” the amount at which the case should settle.
Value is temperamental. Some cases are easy to value and others are like fussy toddlers – a mountain of work and still not happy. Even so, most agree that not every detail needs to be known before settlement. In fact, the unknown has its own value.
Here are three ways we can prepare for a successful mediation as early in the game as possible:
1. Don’t chase squirrels. Focus on facts that drive settlement.
We’ve been taught since law school that a case is not ready for settlement or trial unless we spot every issue and chase down every lead. In real life, though, we seldom have those luxuries due to the time and expense involved in litigation. Fortunately, deciding how much your case is worth is more art than science, and there are ways to maximize your existing resources to cover your bases. For instance, if a fact or issue is relatively minor, can it be tabled for later to give you bandwidth for the bigger issues?
If you can’t decide what value to place on a particular issue, can you make a list of issues and rank them by significance and degree of risk? Are you stuck in the same pattern of indecision with every case?
Do you have a trusted colleague who can be your sounding board? You will be surprised by the clarity that can result from streamlining your case, presenting it to someone else, and trying to see it from different perspectives.
2. Mediate to settle, not just to win at trial.
Many think successful mediations only work if parties launch all-or-nothing negotiation tactics, leaving little room for compromise. Although some cases should certainly be tried, realistically, most cases settle. This suggests that mediation can serve a broader purpose than simply giving parties a forum to bat around possible trial outcomes.
Every mediation is a unique blend of facts, personalities, relationships and choices. Parties who mediate to settle are usually active listeners on a mission to explore and create options for their clients. As contributors, they partner with the mediator to find workable solutions and fashion outcomes that consider a broader spectrum of their clients’ needs. By doing so, they discover added benefits such as peace of mind, clarity, economy, efficiency and preserved relationships.
Asking what will meet your client’s ultimate needs will greatly expand your creativity for finding options and solutions. For example, can you think of other interests that matter more to your client than money?
If money is a proxy for pain, outrage, pride, opportunities, and other intangible losses, how would you go about finding out your client’s most pressing needs? What value should you assign them? How might their needs be addressed non-monetarily? A mediator can be a helpful sounding board to assess value and generate options.
3. Know how your stakeholders think. Believe in the process!
As a young lawyer, I longed for complete autonomy over my cases. I naively imagined a day that I would no longer confront emotional clients, impassive adjusters or bureaucratic red tape to get enough settlement authority.
However, over 25 years of experience has taught me that despite outward appearances, everyone ultimately answers to someone, whether they are clients, supervisors, CEOs, or the public at large. So, unless you practice Jedi mind tricks, you’ll need a good plan to get your settlement request approved.
Fortunately, if you are mediating to settle, asking for approval doesn’t have to be a do-or-die event. Instead, think of the approval process as an ongoing conversation about needs and goals that deepens as your case develops. Favor candor and transparency over clever maneuvering when engaging with your client or stakeholder.
If your client is concerned about creating bad precedent for settlement, try scheduling regular, brief chats with them along the way to find out the source of those fears and how to address them. If your client is grieving a loss, explore what emotional triggers can potentially cloud their judgment. Does your client make decisions based on fear or hope? What are ways you can calm their fears with reasonable reassurances or temper their hopes with caution? Most clients will appreciate your steady and balanced outlook in the long run.
My toy-designer nephew once tried to teach his artistically challenged aunt the basics of watercolor. He said you first have to paint the entire canvas your darkest colors. Gradually, you introduce light and dimension, which results in a layered and nuanced composition.
Mediation is a bit like that. Every case is an amalgam of problems and possibilities. It looks like an opaque mess in the beginning, but like art, success and clarity will come when we patiently tend to each stage, focus on some aspects over others, and trust the process.
