By Mediator Lee Wallace
Back in the 90’s, our firm got a $104 million dollar verdict — counting punitive damages — for the family of a 17-year-old who burned alive in a fuel-fed truck fire. Shortly after the verdict hit the papers, we were preparing another client for mediation in her case. She had been hurt in a car accident, but by the time of mediation she had made nearly a full recovery. She told us that she had read about the other verdict, and figured she deserved about the same amount.
Sometimes clients develop firm, but misguided, ideas about how much they should get in a lawsuit (for the plaintiff) or what they ought to pay (for the defense). Whichever side you represent, mediation can be very difficult when your client digs in her heels and refuses to listen to you about the very real risks of the case.
Here are six things you can do to help your client get “unstuck” when it comes to settlement.
1. Enlist the help of the mediator.
Probably the single, most important thing you can do is enlist the mediator’s help. Be up front about your concerns.
My job as mediator is to support and back you up. Sometimes the client just needs to hear what you have already said, again, from another source. If you think your client will have a tough time being realistic at mediation, call me in advance to talk through the issues or pull me aside before the mediation gets started.
2. Realistically assess the risks in the case.
Your client will keep the rose-colored glasses on until you give her a reason to take them off. Walk your client through an honest assessment of the case, warts and all. What are the weak links? Where do you have gaps in your evidence? For example, if you bear the burden of proving lost wages, you may have trouble making your claim if the plaintiff had just started his own business shortly before he was injured.
3. Evaluate the pros and cons of settlement from your client’s point of view.
Some of the best arguments for settlement have nothing to do with the legal points of a case. Last week I had a mediation with a very anxious plaintiff. One of the reasons she needed to be reasonable in settlement was that trial would have been nearly unbearably difficult for her on a personal level.
Think through the case from your client’s point of view. Does your client really want confidentiality? Does the company need to end the litigation so that a pending sale can go through? Does the plaintiff want to move out of state as soon as the case is over? Help your client fit the concept of settling this litigation into the bigger picture.
4. Gather concrete facts.
When your client is being unrealistic, it won’t be enough to give general comments about “risks at trial” or “runaway juries.” You need to marshal specifics.
Ask other lawyers for their experiences in your venue. If you have access to a database with information about settlement or verdict figures, pull some relevant stats.
And think outside the verdict/settlement box. If you represent the defense, keep your adjuster posted on verdicts about bad faith failure to pay. If you represent a plaintiff who wants lost wages for a business that never got off the ground, send her an article about speculative lost wages. The client may not understand all of the article, but she will get the point that you have valid reasons — that are supported by other lawyers — for your opinions.
5. Start preparing the client well in advance.
We all need time to process an idea in order to change our thinking. Before the mediation, talk to your client about settlement and help your client set realistic expectations about the value of the case.
The earlier the client begins to consider the risks, the more time he or she has to incorporate those ideas into her thinking. If the client starts out the mediation day with a firm conviction about what the value of the case is, it can be difficult to shake that idea during the few hours of the mediation.
6. Have the client attend the mediation in person.
Typically the plaintiff attends the mediation, but in recent years there has been a trend toward having the adjuster and defendant “present by phone.” I will write more about this trend in a later article. But for purposes of this article, if you represent the defendant and you think your client is being unreasonable, press hard to have the decisionmaker attend the mediation in person. The decisionmaker is more likely to reach a realistic evaluation of the case if she sees the other side’s opening presentation and personally meets the plaintiff and his attorney.
What Attorneys Are Saying About Mediating with Lee:
“Lee’s calm reasoning and creative solutions helped us to resolve a challenging case when one side was willing to walk away and the other side would not budge on their number. She worked hard to find a compromise when none seemed possible.”
– B. Strothers
“Lee brings to her mediations a wealth of experience from which all parties can draw. Her impressive ability to marry the case facts to negotiation strategy aided in the just resolution of our case.”
– N. Campbell
“I have known Lee for many years, but had never used her as a mediator until recently. Not surprisingly, she was prepared, having read all the documentation I had forwarded her pre-mediation, and she did an outstanding job in getting a difficult case settled. I look forward to using BAY Mediation and Lee in the future.”
– M. Smith
“Lee Wallace helped us resolve a case that I did not believe could be resolved. As an initial challenge we had multiple parties, several of whom had to join by remote video conference. The details of the case were also challenging [and] there were widely disparate views regarding case value. Lee was resolute, objective, and prepared. While her 30 years of trial experience and breadth of knowledge on a variety of legal issues were invaluable, her kind and logical demeanor got this case resolved. I must confess at one point I was ready to storm off myself in frustration at the other party, but Lee encouraged me to stick with it and keep working. I’m so glad she did!”
– A. Long
“It was a pleasure working with Lee T. Wallace during the mediation process. She pushed both sides to continue to fight through the process and not give up. And because of her vigorous determination I was able to settle my client’s claim to their satisfaction.”
– S. Carson
Lee did an effective and efficient job getting this case to a successful resolution. She takes a low key approach to make sure each side does not feel undue pressure to increase their offer or decrease their demand. I will definitely use Lee for future mediations.
– J. Brown