The Mediators Speak: Mediating When Your Case Is Strong

• Pages: 45-47
• Date: 01 January 2025
• Author: Jeff Kichaven,Rachel Ehrlich

Insurance Coverage

Vol. 33 No. 3

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Published in Coverage Vol. 34 No. 1, Copyright © 2025, American Bar Association. All rights reserved. This information or

any portion thereof may not be copied or disseminated in any form or by any means or downloaded or stored in an electronic

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Practice Points»

The Mediators Speak: Mediating when Your Case Is

Strong

By Jeff Kichaven and Rachel Ehrlich

Jeff Kichaven:

“I’m not sure we want to mediate this one… Our case is strong.”

Every lawyer has voiced this concern. But maybe it’s not that simple. You can mediate

successfully even when your case is strong. Here are some tips.

Mediate from a Place of Strength

Mediation is a good place to show calm, steady confidence in the strengths of your case.

Once you do, it’s part of the mediator’s job is to make sure your counterparties appreciate

your strengths and bargain accordingly.

How to show that confidence? Try these two ideas.

1. Share your mediation brief. Lay your strengths out in writing and send

your brief to your counterparties in time for them to think it over before

the mediation day. Don’t catch them off guard, don’t catch them by

surprise. That way, they can come to the mediation with a proper top

dollar or bottom line in mind.

2. Sit down with your counterparties in a Joint Session. Let them ask

questions. Be prepared to answer. Let them try to poke holes. Be prepared

to respond. Let them exhaust themselves trying to rebut your showing.

Let them then bargain in the face of reality.

Remember, There Are Good Reasons to Settle Even the Strongest Cases

There’s a saying sometimes attributed to Mark Twain which goes, “I have been ruined but

twice in my life; once when I lost a lawsuit, and once when I won one.”

This sentiment may motivate your clients as well. Clients may want to settle a strong case,

to pay a little more or take less, to get all the other benefits of settlement – eliminating the

risk of a judge or jury getting it wrong, eliminating mental wear and tear, and (no offense,

colleagues) eliminating further expense. Victory has a price; not every client is willing to

pay it.