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Managing Expectations in Mediation

By Usman Baporia | Aug. 2, 2008
News

Expert Advice

Aug. 2, 2008

Managing Expectations in Mediation


     
Mediation is a vital forum for dispute resolution. It is where the rubber meets the road in settlement negotiations. And although no one can guarantee your client's success, the chances will increase if you manage everyone's expectations. In this context, "everyone" means everyone: your client, your opponent, and the mediator.
     
Client Expectations
      Effectively managing your client's expectations is critical--beginning at the very outset of the attorney-client relationship. The key is providing your client with an honest evaluation of the case--warts and all--expressing the problematic issues to your client.
      From the first intake conference, you should advise your client that the vast majority of civil cases settle before trial. You should explain the likelihood that mediation will occur and that it will probably be the forum for dispute resolution in your client's case. Most important, never exaggerate the value of the claims or your chances of prevailing. Even if you are Clarence Darrow Jr., you will be better off focusing on the difficulties of the case rather than the glory of victory. Finally, be direct about the actual cost of taking a case all the way to a verdict.
      Managing expectations for a defense client can be trickier because of your "dual relationship"--dealing with both a client and the insurance company paying the bills. Faced with brutal market competition, defense lawyers walk a tightrope, balancing the need for candid assessments against the hope of winning future business from the carrier. Self-promotion and rosy predictions are part of every beauty contest; the danger is that they can skew expectations. To ensure both success at mediation and a continuing supply of defense work, express clearly the weaknesses and problems of the case from the outset. Focus early on your adversary's strong evidence, the weaknesses in your defense, and the unpredictability of an expensive jury trial.
     
The Other Side
      You also need to manage the expectations of your opposition. Depending on whom you represent, work to either raise or lower the expectations of your adversary. If the case involves exposure in excess of insurance policy limits--whether your client is a plaintiff or a defendant--consider a "policy limits" settlement offer. For the defense, a "costs of defense" offer may be effective. And even though you are constantly preparing for a successful mediation, continue to impress the other side that you are ready to take the case all the way to a verdict.
      If you are a plaintiffs attorney, be the first to serve discovery. Let the defense know you mean business. Take an aggressive approach to discovery, and be thorough in your depositions. This will send a message that you are getting ready for trial.
      In anticipation of mediation, offer to exchange briefs and key evidence. In many respects, mediation is today's trial forum, so don't hold back. Prepare a thorough and impressive presentation (with computer-generated graphics, if possible). Key evidence and video clips from both sides should be viewed at a joint session at the beginning of the mediation. In other words, don't depend on the mediator to do your work for you. Do it yourself.
     
Don't Forget the Mediator
      Although the concept of managing mediator expectations may seem strange, successful lawyers understand the power and importance of doing just that.
      Once you know who the mediator will be, always contact him or her and try to meet in advance of the mediation. If that is not possible, have a pre-mediation telephone conference. Focus only on the strengths of your case: If you represent a plaintiff, talk about the clear liability evidence, significant damages, your client's expectations of a big award, problems with the credibility of the defendant, and your willingness to try the case. Set the bar high. If you represent a defendant, focus on the strengths of your defense, including technical defenses, any persuasive evidence, and any credibility issues the plaintiff might have. Set the bar low. From both perspectives, provide the mediator with everything that serves your interests.
      At the mediation, continue this effort and work even harder at it. If the other side convinces the mediator that you will accept a lesser result than advertised, your chance of success will plummet (and you may end up facing a very unhappy client). On the other hand, if you convince the mediator that your adversary is willing to give more to settle than is on the table, you may well be on the way to having a successful outcome and a satisfied client.
     
      Dan L. Stanford practices law in San Diego. He specializes in professional malpractice cases.
     
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Usman Baporia

Daily Journal Staff Writer

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