Mediation as a Discovery Tool

So the case does not settle at mediation! Disappointment perhaps, but there are other benefits to going to a mediation. One of them is the exchange of information that takes place between or among the parties. This is particularly true of a mediation that takes place early in the case, or at a certain point in time after the parties have exchanged limited information. Even though a mediation takes place, it is sometimes the case that the parties simply do not know enough about the other side’s position or the facts of the case; therefore, productive negotiations just don’t happen. Or, it may be that the perception of the parties is just quite different and more information needs to be exchanged before settlement can be reached.

We had an employment discrimination case recently that I thought had some real merit. It was different from other employment discrimination cases in that the employee was still being paid in full; however, he had been reassigned, and had not been allowed to pursue some job opportunities that had been posted by the company. He had documented a series of events that looked as if he had an actionable case, and some very large damages since he was only 55 and had several years of employment left. It appeared he was being shunted aside primarily because of his age, although he was African American and believed race was also an issue.

The employer – a major national corporation that advertised highly its emphasis on non-discriminatory practices – really wanted to mediate the case before any litigation was to commence. The employer had a program in place for pre-litigation mediation, and offered to pay the cost. A free looksee at their defenses.

We huddled and decided to accept, and I am very glad we did. We found out a lot about our case, and what damages we might claim, and the other side was able to hear from us. As a result, we have all agreed to give the matter a month or so (no statute problems) to contemplate a possible resolution that might avoid litigation and potentially lead to continued employment – a real positive for our client. The early exchange of information allowed us to find out more about the case and assess its merits. Likewise the employer had the opportunity to do so. We all gained by the early exchange of information and could each reassess our position and possibly avoid a costly and very unpredictable fight.

So, mediation can be very productive as a discovery tool and opportunity to learn more about your client’s case, and what the other side has to say IF the parties come in good faith, with a view towards getting the important facts on the table. But if one side is attending simply to demonstrate that it is playing hardball and merely wants the other side to capitulate for reasons that are not meritorious, then a mediation is not worth the time or money.

One issue that you face is how much you tell the other side. For example, what if you have significant negative information on the other party, or impeachment potential; do you share that? Maybe not. Maybe it has to be saved to avoid the adverse party being able to defuse this potential damaging evidence. Or, it might be that you can disclose the essence of this information in a private letter to the mediator, and can go over its substance and level of importance in your case in a private caucus. That is a judgment call that you as counsel need to make. If you follow this approach and hold it back or disclose it only to the mediator, the mediator might use it if he or she believes it may result in closure. Again, that is something you and the mediator need to discuss to put together a strategy.

My experience is that an early mediation is a valuable tool if the parties are really interested in obtaining a resolution without protracted litigation. Even if the case does not settle, there can be an exchange of information that allows the parties to re-evaluate the case. If necessary, they might fashion out a limited discovery plan, complete that part of the discovery process, and reconvene for a later session at a time when they are more ready to talk about a solution.

If the parties come in good faith, settlement or not, a mediation can be a good means of obtaining more information about the merits of your client’s case. A good faith exchange of documents and facts can lead to an early evaluation of the case so that a resolution can be achieved.

A Successful Mediation of a Wrongful Death Case

This week we had the privilege of representing a mother, father, and sister who lost their beautiful 25-year-old daughter/sister in a tragic head-on collision on Highway 12 in Solano County. It was 7 a.m. on a very hilly stretch of SR 12 just east of its intersection with SR 113. She was traveling Eastbound. A vehicle driven by a male who apparently was in a state of hypoglycemic shock from insulin deficiency was driving erratically at about 85 mph (55 mph limit) in the far right hand lane (left hand to him) on the wrong side of the road (passing lane and driving lane to traffic in the opposite direction). Witnesses had him driving as if he was trying to kill himself. Our clients' daughter/sister had no chance. There was no shoulder to her right; instead there was an embankment. The accident history in this stretch was allegedly less than the average for similar other roads, but the line of sight and lack of a shoulder was significant. While the State contended that a raised median or Jersey barrier was not proper for a two-lane roadway, such had been installed in other areas of SR 12. The State further contended that it had taken reasonable precautions given the less than average accident statistics by putting in thermoplastic "bumps" or reminders down the center and lengthening the passing lanes.

The driver carried 15/30 insurance. Our client had no available UIM coverage. The State was the only source for obtaining an award. But there was another problem: The economic damages were not significant. What was significant was the loss of the relationship with the decedent's parents. This was a very close Filipino family, whose two daughters lived with the parents. There is a strong tradition in the Filipino community to take care of the parents. The decedent was a loving, dedicated, and committed eldest child. It was that relationship that had value.

But under California law, the State was only liable for "its share" of the value of the relationship. Thus, if the State was only 20% negligent and the relationship was valued at $1 Million by a jury, the State would only be responsible for $200,000 plus any economic loss. So we argued that the absence of a recognition of the special dangers at this point in SR 12, where our decedent could not see an oncoming car in her lane in time to avoid the accident, and had no where to go, was negligence.

The case settled at the end of a one-day mediation. The total value of the settlement was over a $1 Million dollars, which was paid for by the State and a modest addition from the driver's insurer. Further, we settled the case 10 months from our date of filing the Complaint. While the costs were high, they were 1/3rd of what it would have cost to try the case.

We submitted a 40-page mediation statement, plus 30 exhibits, two private letters, a DVD of the road, photos of the accident, and family videos, interviews and photos. It was a compelling video about the family’s relationship. We had three consultants/experts at the mediation, including a cultural anthropologist, a consultant on the roadway and accident mechanics, and a structured settlement adviser.

An excellent result, early in the case, with monies in a structured annuity program for the mother, father, and sister, whose financial future is more secure.

The client was well served.

In words: Pressure on the defendants, preparation of the mediator and the clients for the mediation day, and a sound economical evaluation of the case.

Using Videos at Mediation

One of the most successful techniques for a mediation is to prepare a video about your client's case. We seldom go to mediation without one, particularly in serious injury and wrongful death cases.

We have had two highway wrongful death cases go to mediation in the last 4 months. Each had videos of the roadway, before and after the accident, showing how the governmental entity remedied the problem after our accident which, in each case, was one of several that took place because of the dangerous condition we claimed existed. The "subsequent repairs" showed how feasible the remedy that was used to prevent further accidents was to install.

We had photos of the accident scene, cars, and video of the path of the vehicles. We also included a computer simulation of the accident, interviews of family relatives and family members talking about the value of the relationship lost, plus family photos. These are usually about 45-60 minutes long and very compelling.

They are particularly valuable if the bulk of the damages are non-economic and there is joint liability. In one case, we were trying to place as much liability on the State of California as we could as the driver defendant, who was on the wrong side of the road passing when he should not have been, had minimal insurance, and there was only minimal UM/UIM coverage. Thus we had to place as high a percentage of liability on the State as we could to add value to the non-economic claim.

Pictures are definitely worth many words here, and are a great supplement to a well organized and comprehensive Mediation Statement.

What is a "Resolution Advocate"?

This is our byline, motto or working description of how we are committed to our clients' cases. We are experienced and trained to manage our cases for our clients to gain the advantage and find the best and most effective path to resolution -- whether through a mediated settlement, trial or arbitration.

We use our skills and experience as trial advocates to provide the vision to see how the case can be best managed for an early and effective evaluation, and prepare it for mediation (a non-binding, voluntary process for resolving disputes).

Our goal is to persuade our adversaries that direct negotiation or mediation is preferable to challenging our client's cause at trial.

Of course, it is your choice as our client to decide whether a settlement is in your best interest. But we know how to get you to that point at which you can make that decision.

We provide the litigation expertise through excellent consultants and experts who assist in that process, whether it is evaluating fault or damages, or the financial impact a settlement will have on you personally from a view of planning your future and getting life and your family's life back together and on a positive course.

We know how to seek a resolution of your case that is in your best interest.

That is what we do, and we do it well.

It would be a privilege for us to be YOUR RESOLUTION ADVOCATE!

Do Lawyers Really Understand What They Need to do to Prepare for Mediation

Recently I was invited by our local legal publication to be one of five persons on a Mediation Roundtable to discuss mediation techniques. We were interviewed by a moderator on various topics about mediation. I was the only lawyer in private practice on the panel. The others were all mediators; three were lawyers who are now doing full time mediation and the other was a retired trial court judge who for the last seven years has been mediating privately with a local service.

What I heard shocked me: Lawyers don’t know how to prepare for a mediation, and most of the lawyers who attend mediations just are not doing a very good job. The mediators all explained the hurdles they had to overcome. Their chief complaints could be listed as follows:

• There is no strategy or plan by the lawyers for their clients;

• The briefs submitted are “too brief,” and cursory;

• The lawyers have not prepared the client for the process; the clients have little understanding of how a mediation works and what can be accomplished;
• The parties are hostile to each other, or the lawyers are, which detracts substantially from the need to candidly communicate;

• The clients are not prepared to discuss “the numbers”; the client has no idea what the value of the case is;

• The lawyers have not discussed mediation as an alternative to trial – i.e., the “present value” of money (i.e., a settlement) versus the uncertainty of a recovery in the future;

• The client believes that the mediator is going to decide something and does not understand the role that the mediator plays as a neutral.

• The mediators spend too much time (one said 30%) of the initial time doing what the lawyers should have done to educate the clients;

• The lawyer is impatient with the process, so the client is as well.
  

So there you have it. The perception of at least these mediators was that we are not doing a good job for our clients by taking advantage of the mediation process, participating in it and educating our clients so that they have a real opportunity to resolve their cases. They seemed to uniformly agree that the “mediation process” begins with education by us of the client about that process and how the client can gain from the dialogue about the case and perhaps achieve a resolution of the dispute.

In my experience, the “mediation process” begins when the client first meets with our lawyers and staff to discuss the case. It is important for us to factor in mediation as part of the Litigation Management Plan, and make it an event in the process of representing the client just like a deposition or hearing on a key motion. We discuss mediation as a way of testing the case, as well as posturing it for resolution. We also advise the client how a mediation works, what its advantages are, and alert the client to mediation as part of the evolution of the case – a main event for which we will prepare just like we prepare for trial. I also stress that our advocacy is not comprised by our participating in a mediation. Indeed, I tell clients (after I agree to take the case) that offering to mediate is a show of confidence and strength in our position, BUT mediation involves looking realistically at the issues – liability, damages and collection of any judgment – and the costs of going to trial in comparison to the value of a settlement.

Since courts are sending many cases to mediation and parties seem more interested in participating, we need to be more mindful that clients need to be educated from day one about this important part of the litigation mechanism. While many courts require lawyers to inform their clients about this process at the outset, it seems that at least my mediator colleagues believe we need to pay more attention to, involve and educate our clients, and make this a part of the ongoing discussion of the case.

Listening to the Story as a Tool in Mediating

Being able to listen is an important trait in our profession. We need to hear what our clients recite as "their story" and develop a plan around that story for resolving their dispute or obtaining compensation for the wrong done to them. From the day we first meet our clients, we must open our ears to their plight; a tragic injury, a loss of a loved one, a business or investment that has been stymied by wrongdoers. Whatever the matter, it is important that we understand what happened, how it happened, and what relief is available to bring the clients back to where they were before.

Listening is an important part of negotiations. We must listen to our opposition to understand the other side’s views as to the facts or story of the case. Without a clear understanding of their position, we cannot fashion responses, nor put together a plan for representing our clients. What is their story? Who are the story tellers in the “theater of the real” (i.e. the trial court)? How will the sides be viewed by the trier of fact – court or jury? How will the story tellers be perceived? Will the trier of fact hear our story or theirs? Thus, we have to anticipate these questions and answers to the questions in planning the case and managing it for our client.

I often talk about the “laser beam to resolution,” i.e. the shortest line to a fair ending of the dispute in obtaining rightful compensation for our clients. That first test of this plan is in direct negotiations. Generally, I try to engage the other side in an early dialogue about the case, but at that point I am trying to listen to their story. I need to hear their version as soon as I can. I don’t just rely on the pleadings or discovery. I want to hear it from them or their counsel.

If direct negotiations don’t work, then mediation is next. By that time I may have listened to witnesses in deposition, or heard the oral argument of counsel at a motion or listened to counsel during a deposition with objections that may reveal the other side’s thinking. All along the way I am listening to what is being said by those participating, including the judge’s comments at case management conferences or hearings.

A mediation provides another opportunity to listen and hear – this time from a neutral whose views are important because they should provide an objective assessment of the stories being told by the parties in their briefs and sessions with the mediator. But it is important to the process for you as counsel for your client to listen and hear what is being said. Then, you need to discuss what has been heard with your clients and, again, listen to how they respond. Are they rational? Do they understand the issues? Are the responses purely emotional? Do they understand the litigation process and how they can lose as well as prevail? What is a “win” in their minds? How does that track with a realistic appraisal of the case and the probable results? Do they understand the value of the opportunity, logic and rationality of resolution by mediation, and how that process can work for them?

All of this requires you, as counsel for your client, to be a good listener, and to hear what is being said. Then you must translate that into a dialogue with your clients, and a mediator if that is the process you are involved in, so that a course can be fashioned which leads to a positive resolution of your clients’ case.

Listening, hearing – important qualities of counsel in providing high quality representation for your clients in the dispute resolution process!

The Three C's of Negotiation

Three basic principles are at the heart of settlement negotiations, whether they are direct or supervised in the more formal setting of a mediation: candor, communication , and confidentiality.

The level of candor required depends on the parties, their relationship and the forum. That is, the parties may be more guarded in direct negotiations, whereas in a supervised mediation, the presence of the mediator and the use of such as an intermediary may persuade the parties to be more candid about their case during the negotiations.

Communication is critical to the process. Once the parties stop talking, then there is no chance of a settlement even with a mediator. As long as the parties are talking to each other, even if through a third party, there is a chance for a negotiated resolution.

Confidentiality is also critical to the process. It encourages both communication and candor. The parties must understand that they will not be prejudiced by their exchanges, and that such will not be used against them in subsequent proceedings in the litigation. This assurance of confidentiality is at the heart of negotiations, whether direct or supervised.

These are the three essential underlying principles which allow the parties to reach a point where they together decide if the matter can be resolved. It is the policy that the decision making rests with the parties that requires that the three “C’s” underlie and support the process of negotiation.

Without an assurance of confidentiality, the parties are not going to candidly exchange information. Without confidentiality and communication, open discussion are stymied, as the parties will believe that whatever is said may end up being part of the other sides’ case at trial. The integrity of the process of negotiation in any format can only be assured if the parties are confident that their exchanges, disclosures, and bargaining will be protected from being used against them in subsequent proceedings. The parties must believe that they will not be prejudiced if they engage in any settlement exchanges.

As the Preface the Uniform Mediation Act states, “. . .[T]he law has the unique capacity to assure that the reasonable expectations of participants regarding the confidentiality of the mediation process are met, rather than frustrated. For this reason a central thrust of the Act is to provide a privilege that assures confidentiality in legal proceedings.”

The Federal Rules of Evidence do not contain any specific provision relating to communications during mediation. Rule 408 protects some communications during negotiations, but does not address mediation itself. District courts have specific rules adopted to protect what takes place during mediation and serve the purpose of carrying out the policies of encouraging candor and communication in supervised negotiations.

The protection of rules and statutes relating to direct negotiations is narrower than the confidentiality which attaches to the mediation process. For example, California Evidence Code section 1152 applies to an offer for compromise or to furnish something of value to another person who has sustained, or claims to have sustained, loss or damage, and also applies to “conduct or statements made in negotiation thereof…”

Despite the legal niceties, the parties should approach any negotiations with the understanding that they will all cooperate in implementing a principle of confidentiality so that the negotiations can progress towards an agreed upon resolution of the case.