By Mediator Lee Wallace
Ever wish you could wave a magic wand and make somebody give you what you want?
It may not be quite that easy, but there are ways you can get somebody ready to give you what you want in your next negotiation or mediation. It may sound counter-intuitive to say that you can prepare the other side to give you what you want, but as a mediator, I have seen firsthand that it works.
Getting the Other Side Ready
Before a negotiation or a mediation, the other side is going to do just what you are doing: they are going to caucus and discuss the potential value of the case. They will consider the arguments, evaluate the facts, and sift through the evidence. Based on this analysis, they will come in to the negotiation with an idea of what the case is worth. As the other side is meeting to evaluate the case before mediation, you want them to be evaluating your best possible case. To do that, the other side has to know the important facts that help your side. Review your discovery to be sure that you have put your best foot forward.Sometimes there is evidence so hot that you are tempted to save it for trial. I totally get it – who wouldn’t want a Perry Mason moment at trial?! But as I tell litigants when I mediate — you’ve got to make a choice. If you want the other side to change their value of the case, they need to know why you think they should do so.
As the other side is meeting to evaluate the case before mediation, you want them to be evaluating your best possible case. To do that, the other side has to know the important facts that help your side. Review your discovery to be sure that you have put your best foot forward.
Sometimes there is evidence so hot that you are tempted to save it for trial. I totally get it – who wouldn’t want a Perry Mason moment at trial?! But as I tell litigants when I mediate — you’ve got to make a choice. If you want the other side to change their value of the case, they need to know why you think they should do so.
What the Case is Really Worth
In order to settle, the parties’ assessments of the case have to overlap. If one party has information that the other does not, it’s far less likely that the assessments will overlap, and hence that the case will settle. While that point applies to all of the information and evidence that supports your side of the case, the data that relates to damages is particularly critical.
If you represent the plaintiff, you should update the defendant on any new damages information at least a week or two before mediation. You want the defendant to show up at mediation with authority to settle the case as it currently stands, not as it stood at the time of the original demand letter. If you hold the information until mediation, the lawyer and adjuster may not be able to track down the people who can give them more authority to settle the case for a fair value. Worse, some lawyers and adjusters won’t even try, because they are embarrassed; nobody wants to call her boss from the mediation to admit that she undervalued a case. If you provide the information in advance, the defendant can come with authority that matches the true valuation of the case.
The same reasoning applies on the defense side. If you have hired an expert who will testify that the plaintiff’s surgery was not related to the accident, the plaintiff needs to understand that your side disputes whether the cost of the surgery should be included in the settlement figure. If you represent a qui tam defendant that changed the way it coded a procedure, the relator and the Government need to understand that you believe the damages clearly cut off as of the date your client adopted the new coding procedure.
When it comes to damages, the fewer surprises, the more likely you will be able to settle at mediation.
A Special Note: Corporate Defendants, Insurance Companies and the Government
If the other side is a corporation, insurance company, or the Government, you need to be especially careful to provide the factual and damages information several weeks in advance. Once the lawyer or adjuster has run the scenario through the corporate hierarchy, it can be very difficult to get the train to reverse direction.
Let’s say that at mediation, you present a brilliant argument about why the damages should be much higher, or you disclose facts that the corporation or the agency missed. And let’s even say that the lawyer and the adjuster on the other side are willing to endure the embarrassment of telling their colleagues that they were mistaken. Although the lawyer and the adjuster are willing to throw the train in reverse, doing so is harder than it sounds —and it takes time. They are going to have to maneuver back through the corporate hierarchy, which can be nearly impossible to do during a single-day mediation.
The goal of mediation is to get the case over and done with in one day. To increase the chances that that can happen, make sure you have thoroughly prepared the other side about your best case.
What Attorneys Are Saying About Mediating with Lee:
“Lee’s vast experience as a practicing attorney gives her credibility with clients who listen, because they know she knows what she is talking about. That said, she never tries to tell clients what to do and is very respectful of their reasoning and particular situations. Lee truly cares about other people and that compassion will serve her well in helping them get the best results. Lee is a great mediator and I hope you will grant her the opportunity to try to resolve your case as well.”
– A. Bronsted
“We’re going to ask for Lee again, and again, and again!”
– S. Mahoney
I recently had the pleasure of having Lee Wallace serve as a mediator for a difficult wrongful death case. A prior mediation had failed, so I had little hope that this ensuing mediation would be successful. Indeed, there were several times that my client was ready to terminate the mediation, but Lee counseled us to stay. Ultimately, while it did not settle that day, she established a framework that allowed the parties to settle the case soon after the mediation concluded that day. Lee did a great job of staying with the matter and seeing it to conclusion. I highly recommend Lee as a mediator.
– P. Strott
Lee Wallace is both a brilliant lawyer and a very nice person. She gives her all to a mediation assignment. She is a hard worker, with a very quick mind, who is able to thoroughly understand the important aspects of even very complicated factual situations and knows how to apply the law to them. She got my difficult case settled and I will not hesitate to seek to use her again.”
– K. Pollock
“I recently had my first mediation with Lee Wallace, and I must say it will not be my last. She did a great job facilitating negotiations, and helped each party grasp both the strengths and the weaknesses of their arguments. I would not hesitate to recommend Lee Wallace as a mediator for your case!”
– B. Collins
“Lee Wallace exceeded all my expectations as a mediator in a Personal Injury suit presented before her. Lee’s experience, education and demeanor was amazing and she gained trust from both parties at the very beginning. Not only was she polished and highly professional, she was thorough and did not waste time bringing the mediation to a successful conclusion. Overall a very pleasant experience and my client was pleased with the result as well.”
– D. Russell
“Lee had the intellect necessary to get a really difficult case settled even where the odds were stacked against her. I would use Lee to mediate any of my cases.”
– A. Joffe
“Lee helped get a case settled that I never would have imagined would have settled that day when I walked into that mediation. Opposing counsel and I had drastically different views of the case, as did our clients. Yet, with Lee’s knowledge, experience, and preparation, she was able to lead us to a resolution that my clients were satisfied with. I look forward to using Lee again in the future!”
– A. Grubbs
“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
“Lee 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