SC Lawyer, November 2009, #4. BASICS SERIES Effective Representation at Mediation.

• Author: By F. Barron Grier III

South Carolina Lawyer

2009.

SC Lawyer, November 2009, #4.

BASICS SERIES Effective Representation at Mediation

South Carolina LawyerNovember 2009BASICS SERIESEffective Representation at MediationBy F. Barron Grier III Mediation has become an integral part of the practice of law in litigation, and all participants should master the rules of alternative dispute resolution. The author has been a trial lawyer for 40 years and, having mediated hundreds of cases, offers the following suggestions.

It is an old cliché, but the number one thing is to be prepared: (a) Know the dates, times and places that everything occurred in the case; (b) know what the doctors say about causation and how strong their testimony will be on the issue of causation; (c) deal up front with prior and subsequent injuries.

It's amazing how many cases involve pre-existing conditions, and each side should be able to point out how and in what manner the particular incident giving rise to this lawsuit contributed to or exacerbated the pre-existing condition. The defense should be prepared to show how this incident did not exacerbate the pre-existing condition.

Plaintiffs' attorneys should not surprise the defendant or the defendant's adjuster with additional medical bills, lost wages, etc. for the first time at mediation unless they are de minimis. Out of abundance of caution, the defendant should write a letter to the plaintiff's attorney prior to mediation advising that he has been provided with the following medical bills, lost wages, etc. and that he and his adjuster will not consider anything new brought up for the first time at mediation. Insurance companies (except for very small personal injury cases) usually "round table" with many different people the value of cases based on the information they have before mediation. They cannot be expected to react at mediation for a large change in the numbers. This is a sure way to ensure mediation will not be successful.

Don't allow the other side to appear more prepared than you. This is especially true when there is a large experience difference between the attorneys. A younger attorney should go the extra mile to make sure that he or she has all of the information for the mediation and is fully conversant with all the necessary pros and cons of the case.

Don't argue or try to press damages that cannot be proven in court. So many times, there is no contract or statute allowing it. One party will assert attorneys' fees or costs as an element of their damages. This telegraphs to the other side that they are not knowledgeable about what truly can be shown in the way of damages, which definitely affects the proper evaluation at mediation.

Don't argue punitive damages unless it is a clear punitive damage case or there is a real likelihood of receiving them, such as with drunk driving, leaving the scene of the accident or fraud. We all know that there is case law to the effect that the violation of the statute is some evidence of willfulness. We also recognize that no jury is going to award punitive damages for a minor traffic infraction, even though that infraction caused the accident. Insurance companies generally do not evaluate cases for settlement purposes at mediation based on punitive damages except in very rare circumstances.

Don't make exorbitant first demands or ridiculously low offers, as clients get the wrong idea of the value of the case and do not understand when they have to come down to the real "playing field" of the actual settlement range. This causes more consternation when trying to get cases settled. So many cases start out with the plaintiff demanding 10 times what the case is actually worth, and the defendant therefore responds with a ridiculously low figure. This wastes valuable mediation time, and as stated, puts in the client's head the wrong idea about the value of the case. While the author is not suggesting that the first offers be anywhere near where the case will end up, they should have some reasonable basis. Clients should also be advised prior to mediation as to a legitimate settlement range, even if it is several hundred thousand dollars in the range. At least this does not start off the mediation with the parties feeling that it is going to be a huge waste of time.

Plaintiffs' attorneys should clearly explain to their clients prior to mediation the cost of trial, experts and the long delays that may be incurred not only waiting for a trial date, but perhaps the additional time and expense for an appeal.

Know what your experts will really testify to at trial. So many times parties have wishful thinking as to what the expert is going to say. In reality, most experts are very cautious in giving their opinions, particularly in the medical field, and frequently do not come across as strong as the parties may wish. Make sure their opinions will meet the legal standard to be admissible in court.

Know your venue. No single element is more important to a realistic value of the case than knowing what prior verdicts have been awarded in a particular venue. As hard as it may be, attorneys should tell their clients about known negatives, because an experienced mediator is sure to point out those at mediation. Also, the defense attorney must point out to his client when he is in a liberal venue. Also, it is well known that certain attorneys get better results in certain venues. This cannot be overlooked, as it is a very real part of a legitimate assessment of the value of a lawsuit. Each attorney secretly thinks that he can do better than some that have gone before, but that attorney is not being realistic if she has done her homework. You need to know how a particular attorney has fared in a particular venue.

Have control of your client. The attorneys should be in charge at all times during mediation. While we all recognize that it is ultimately the client's decision whether to settle, the attorney should not say to the client "I'll leave it up to you." The attorney should be in a position to make strong recommendations and not be "wishy-washy." The client will appreciate this. After all, it's the very reason that he or she hired the attorney in the first place. Laymen have no clue as to what the value of their case may be, and the approach of leaving it totally up to the client, without guidance from the attorney, usually results in a failed settlement.

If insurance coverage issues are present, never minimize those issues. A defendant should have coverage counsel to make presentations where appropriate. If plaintiff's counsel is aware of the coverage disputes, he should be ready to discuss those issues with the client as well. It does little good to get a large verdict against a defendant who has no assets and no insurance coverage.

Don't allow relatives such as mothers, fathers, grandmothers, grandfathers, brothers, sisters, sister-in-laws, aunts, uncles, etc. to be part of the mediation. Everyone has an opinion when they have little or no knowledge of the case. They become emotional and try to persuade the litigant about things they know nothing about. Don't force the mediator into not allowing those relatives to sit in on the mediation, because it immediately makes the litigant think everyone is trying to hide something or that the mediator is adverse to his or her cause. Litigants themselves don't want to go against the advice of their relatives. This creates a huge burden on all of the attorneys, the mediator and litigants. This should be avoided wherever possible.

Be aware of pending summary judgment motions. While state courts are very reluctant to grant summary judgments, federal courts are not so reluctant. So remember that while you may survive a summary judgment motion, that doesn't mean the court won't direct a verdict at trial. Be realistic, because if you cannot win the judge over to your side, you will probably never win before the jury.

Special problems

Death cases, nursing home cases and the like have tremendous emotional components, and you will want to pick a mediator who can empathize with the client's emotional problems and at the same time make it clear that you are not trying to put a price on a loved one's life. There are subtle techniques that have to be used to make this work in mediation. Do not oversell these types of cases based purely on emotional value in mediation.

Do not downplay inconsistencies in prior testimonies. This has a large effect on juries and they will compromise, even if they still find for the party, if there are significant inconsistencies. It usually comes in the form of prior testimony in a deposition. It can be extremely devastating at trial. If there are inconsistent positions that are material, then this should be kept in mind in evaluating the case at mediation as well.

Try to learn what similar cases have done in the past in your particular venue. Most good mediators can help with this, but it is always appreciated if the attorney has done his or her homework so that he or she can assist the mediator in this regard.

Finally, if you are going to come to mediation, come in good faith. Don't come with the idea you are going to pay little or no money, or if you are the plaintiff, you are only going to accept a large sum. If you are convinced the case cannot be settled, even in a jurisdiction with mandatory mediation, petition the court and have the case excluded or deferred. Nothing is worse than creating bad feelings and a breach of civility when you lead the other side into thinking that you are coming to the mediation with the real expectation of trying to work out differences and get the case settled. I know of three instances when the court, upon motion by an aggrieved party, has issued substantial sanctions in the way of fines and payment of attorneys' fees to the other side. This can easily be avoided by simply filing a motion to be exempt from mediation by advising the court that this is a case that absolutely cannot be settled and that mediation is a waste of time and money. The courts are sympathetic to that position and realize it cannot make either party settle if it is one where mediation would clearly do no good whatsoever. However, in a lot of cases, where the parties believe that it won't be settled, it ultimately is settled at mediation, but that only occurs in cases where people are coming to the mediation realistically wanting to settle and are willing to compromise. The courts, our society and our legal system demand no less.

F. Barron Grier III practices with Grier Law Firm, LLC in West Columbia.