Fall 2010-#2. Civil Case Mediation in Vermont: A Practical Guide.

• Author: by James W. Spink, Esq.

Vermont Bar Journal

2010.

Fall 2010-#2.

Civil Case Mediation in Vermont: A Practical Guide

THE VERMONT BAR JOURNALVolume 36, No. 3Fall 2010Civil Case Mediation in Vermont: A Practical Guideby James W. Spink, Esq.In this brief article, I hope to convey some practical advice that may prove useful to you whether you represent the plaintiff or a defendant in a civil case. My intention, at least, is to discuss what, in my view, works best for your clients in preparing for and participating in a civil case mediation. By continuing to practice law-by remaining an active trial lawyer-I have been fortunate to remain familiar with the "dance" from the litigator's perspective and, as we all know, it can be a roller-coaster of anticipation and anxiety as we negotiate toward a resolution. If we lawyers feel some anxiety, and we do, imagine what our clients are going through. A mediation is a difficult experience for the lay person, particularly in a case involving serious injury or loss such as a wrongful death case.

Across many hundreds of cases, I have gained a sense of what methods in mediation work or do not work, what approaches aid your client's cause or may prove counterproductive. Much of what follows is simple common sense (the trial lawyer's most important tool) although several observations may surprise you or seem counterintuitive.

I always begin a mediation by observing, among other things, that I take very seriously my obligation to be strictly neutral, not for or against any party. That principle applies with equal force here. My comments apply to "both sides" except where context dictates otherwise.

When To Mediate?

In a recent year, the United States district court's annual report for the ENE program (in Vermont) revealed that only about one-third of civil cases resulted in full settlement at the ENE session. Anecdotally, we all have a sense that a comfortable majority (or better) of civil cases settle at mediation as a general rule. So, why the low success rate?

Candidly, there are likely multiple factors involved and I do not have an answer. That said, one can ask: are federal (ENE) cases mediating "too early"? Perhaps, but even pre-suit civil disputes often result in settlement without the benefit of any discovery at all. I think the answer may, in part, depend upon whether all parties are both prepared to negotiate and motivated to actually settle when they sit down across the table from one another.

Sometimes, both parties (it must be both) are appropriately prepared and motivated even before suit is filed. Sometimes, however, one or several parties-on the eve of trial-are either unprepared or not motivated or both. Whether the mediation (or ENE) comes "early" or "late," you should resist mediating your case until you are satisfied that you, your client, and the opposition team are prepared, willing, and able to meaningfully discuss resolving the case.

Preparing for the Mediation

A lawyer who is properly prepared for mediation has, at a minimum:

* ensured the right people will be present at mediation in person; * come to fully understand the existence of, limits of, and any controversy concerning insurance coverage for every defendant; * KEY: managed her client's expectations; * done all that can be done before mediation with respect to any actual or anticipated third party claimants/claims (WC, any lienholder claim, CMS or MSA requirements, etc.); * anticipated and prepared to meet the opponent's arguments; * prepared written and oral presentations that are brief and tailored to the specific case, including a decision whether or not (and how) to have the client speak in general session; * counseled her client to listen, keep an open mind, and be prepared to compromise if and when appropriate, and; * given her client a short course in how a mediation proceeds from widely divergent figures to a narrower range to ultimate resolution (or not).

This list applies to all the lawyers-for both plaintiffs and defendants alike. Beyond such generalities though are some key considerations specific to (1) the plaintiff's preparation and (2) the defendant's approach.

Plaintiff's Counsel

Experience teaches that a fully-informed defendant (read: insurance company, typically) may, right or wrong, choose not to offer enough to settle a case but ... a poorly-informed carrier will never pay you a proper amount. You cannot control how hard-working, experienced, or skillful the defense rep-resentatives you draw in your case are, but you can ensure that you are not the reason for any failure to make a reasonable offer. In other words, in the run-up to mediation, while being careful not to "show weakness" or sacrifice principle, be helpful in providing relevant information to the people you are trying to get...