At the highest level of athletic competition, the Olympics and even in modern professional sports, with millions of dollars and/or entire lives and careers in play, as each hard-fought contest is finished, if you look closely, you will almost always find practically every previously opposing athlete interacting, congratulating and sometimes embracing, their former competition.
True professional athletes have always understood the difference between the contest and the contestants. There will always be many contests; but there will also be but a few such qualified contestants. Thus, the very best athletic contestants understand that their lifetime professional reputation, and their future personal and economic relationship with other similar contestants, are of far greater value than any single contest outcome.
It used to be that way among our legal profession.
Even in the highly charged trial arena, criminal or civil, following the most difficult trial, most trial counsel for both sides in the not-so-distant past would routinely gather socially in mutual professional respect not for any particular outcome, but for their individual professional competence and efforts on behalf of the law and their respective clients. They celebrated their profession, their experience-earned skills and the time-honored process of justice that permitted the contest, not any particular one-time outcome.
They also accepted that in the very next contest, that outcome could be a total reverse of this one.
Accordingly it was the contestants personal honor and integrity and their professional skill that remained the subject of their primary celebration regardless of any single contest’s outcome.
And, that integrity of the profession and it’s public perception was of a greater goal than any one contest or one professional.
The American Bar, many of our state bars and numerous of our member-special associations such as the American Board of Trial Advocates (ABOTA), are increasingly examining a growing issue in our profession: the perceived worsening trend of the lack of civility, cooperation, common courtesy and generally diminished professionalism among some of its members.
Their greater fear: the Public’s loss of confidence in our entire legal system due simply to its loss of respect for many of its professionals.
This observed decline in professional relationships among peers reportedly found its original roots primarily in the trial arena and appears to many to be getting worse. Some have related the problem to pure lawyer numbers and the increasing economic pressures upon the modern lawyer to “succeed”. And, particularly to succeed in the American trial advocacy system in which “winning” seems to be so heavily rewarded in so many ways, with justice always seemingly coming in a distant second.
However, lately and doubly troubling, some believe this “polarization of advocacy” is now creeping into other non-trial areas of the practice of law. “Prevailing at all cost” seems to be a new all-too-common theme for too many lawyers who increasingly have forgotten the greater societal benefits of a more gentile and trusted practice of law.
Having identified the growing problem, even with some aggressive Bar work toward a solution, too many of our members simply seem not to have considered just what such a problem means, or worse, can mean in the future.
And, too many of those same members are likely leading younger lawyers, directly or indirectly, on a similar downward path.
Perhaps one easy place to begin to objectively evaluate the present and future effects of this failure of professionalism and to really start to practice a RETURN to professionalism and civility, may be in the setting of mediation.
Mediation, the antithesis of advocacy and rather requiring continuing professionalism and cooperation for any real chance of success, is clearly the perfect place to at least begin any lawyer’s return to the higher calling of our legal profession.
Simply put, mediation offers immediate rewards for those who practice their professionalism in this arena and obvious failure to those who do not.
One of the clear hallmarks of those who are repetitively successful in mediation is their credibility, civility and cooperation before, during and even after the mediation process. And, another all-too-commonality arises between a lack of those same qualities and mediation failure.
Coincidence? I think not.
Mediation participants remain clearly advocates of their own position. However, where trial participation seems to reward only one side to the total exclusion of the other, mediation usually rewards both sides for their mutual civility, trust and cooperation. After all, there would be no voluntary resolution unless BOTH sides found it to be in their best MUTUAL interest.
But any dual-resolution success usually comes only to those participants who cooperate and openly share with their opposition, who timely perform what they say they will perform and where trust has been pre-established by similar prior practices in prior similar settings.
And, in mediation, where trust is so critical, a lawyer’s credibility is like money in the bank. See, “Learning Mediation Negotiation Technique: First, Personal and Professional Credibility”, August 23, 2012 and “Work on Your Personal Credibility to Improve Your Negotiation Success”, March 9, 2011.
In mediation, there is no judge or jury to “con” into an outcome that may not seem objectively fair. It is your opposition who must agree with the evidence of the claimant or the defendant and they are not easily misled.
And, no one needs to hide the ball from the Mediator assisting the parties; it is the mediator who must know, objectively, the strengths and weaknesses of competing positions in order to work mutually for BOTH sides to find that perfect common ground for resolution.
And there are other differences that permit/require lawyers to “take the high road” in mediation.
In mediation, timely, knowledgable concessions to the opposition of obvious position weaknesses is a positive mediation tactic toward resolution, not a negative one; further, compromise is a true art of mediation negotiation, not a failure of advocacy.
In mediation, honestly dealing with actual facts, not rhetoric, is also mandatory for success. the only one listening to your argument/persuasion is your opposition and they already know fact from rhetoric better than any judge or jury. Thus, truth and candor is always more rewarded in mediation than advocacy.
In short, mediating participants who can be trusted and believed as they work to achieve a goal that works for both sides are far more rewarded than those who cannot! There are simply no rewards in mediation for toughness or trickery or gamesmanship. Or, any of the other failures of common courtesies between parties and counsel.
Therefore, what better place to begin a profession-wide return to the professionalism of civility, cooperation and candor, than Mediation?
At best, these professionalism traits so well rewarded in mediation will be equally rewarded in future trial or in simple everyday dealings with others of our profession. At worst, those who choose not to practice in such a manner will be more easily identified and specifically shunned.
And the remainder-majority will be meeting socially, again, to mutually celebrate their return to professionalism
Begin with your next mediation? I am betting it will work. For you and our profession.
Dan, from Crystal River, Florida.
Earlier this year, I presented my proposal for one template for Plaintiff’s counsel’s opening statement in a personal injury mediation. See, “Mediation: One Sample for a Perfect Plaintiff’s Counsel Opening Statement?”, April 15, 2016.
An apparently popular read, I now propose my sequel for the “perfect” opening statement in the same personal injury-type matter from the perspective of the Defense counsel.
Caveat: Fundamental differences exist between Defense Counsel and Plaintiff Counsel in every mediation;
Plaintiffs and Plaintiff’s Counsel seek a final resolution at EVERY mediation; that is what a one-time client universally seeks and how Plaintiff counsel earn their fee. Defense Counsel earn their hourly fees solely by ending every mediation with a “pleased-client”. Defendants unilaterally decide if and when to voluntarily resolve any claim against them. And many have end-motives that transcend any particular dispute. Thus, mediation end-goals for Defense Counsel at any given mediation are totally disparate from Plaintiff Counsel. And, defense counsel performance at mediation will thus almost always exactly mirror the pure dictates of their client.
However, my template when the DEFENSE is (or may be) seeking resolution:
Preamble: Defense Counsel’s pre-mediation client*-conference is just as critical as for Plaintiff’s Counsel. Although practically Defense Counsel’s mediation efforts in injury claims will be directed solely by the client’s insurance company who hires and pays the counsel for the insured, legally and ethically, defense counsel initially represent ONLY the individual insured, not the carrier. Thus it is their minimum duty to know and ethically plan for, well in advance of mediation, whether mediation directions from the client’s insurance company and the insured-client’s personal desires are similar or at least reconcilable.
(*In Florida, by statute, casualty insurance companies are not permitted to be named-parties to any third-party injury complaint; conversely, by court procedure, however, they are required “attendee-participants” in every court-ordered mediation!)
First, introduce yourself, your client and their insurance company’s representative(s): And, including all others in attendance for your “side”: i.e. an annuity specialist, a translator, etc.;
then clearly announce that your “side” has “spent much effort in preparation for the importance of today“. (It is important to impress upon the lay-claimant the defendants side’s comparable evaluation experience and detail their pre-mediation effort to prepare the direction and extent of their mediation goals and prospective offers.)
Next, set your tone of civility. Mediation for resolution means giving frank consideration that some future decision maker may well agree, wholly or in part, with some points of your opposition.
Thus, thank your opposing parties for their attendance and interest in resolution. (Use this time to defuse any animosity that may have been created by the suit, the litigation process or even between parties or opposing counsel by affirming everyone’s ” interest in resolution“.) and
“avoidance of trial“. (In few circumstances does any Plaintiff want trial; thus, remind all of this very EARLY opportunity to avoid it!)
Next, thank your opposing counsel (and even complement them) on cooperating for this important opportunity of reason and compromise.
And, ( hopefully) for their assistance to you in preparing. (Even if stretching your real feelings, today, you NEED opposing counsel’s good will and good standing/influence with their client for YOUR client’s benefit!)
Ironically, your opposing counsel, properly armed, will be your biggest ally in resolving your dispute. And, “You catch more ants with sugar than salt”
Next, now state, clearly, your clients’ mediation goal:
A) If resolution is REALLY your clients’ goal today, say so by promising hard work, in good faith, to achieve resolution.
B) If resolution is NOT your clients’ goal then, please do NOT say it is. (Rather, state that your clients’ actual goal, that day. (i.e., “to “determine whether the opposing positions are or can be made close enough for resolution today.”)
If no promise is made; none can be broken if resolution is then not achieved. Ultimately, credibility will always be just as important for the Defense as the Plaintiff even if resolution cannot be found that day.,
Next, include “the apology”. Always! See, “Mediating Parties: Get the Most Out of Your Apology”, June 11, 2013.
In the mediation setting, an apology costs nothing but is often priceless to the Plaintiff. Rightly or wrongly, every Plaintiff feels wronged. And, further, they believe they are injured.
Any apology, at least some acknowledgement of at least the claimant’s injuries, is such an important factor in mediation that any defense counsel who omits some form of it, does so at their peril!
But, now follow with your own ” Good Faith Challenge”. (You have set the stage for reasonableness, now ask for the same in return for your reasonableness.)
And,do it positively, not negatively: totally avoid using the word “But”!
One example: “Your attorney makes a number of valid points that we are prepared, today, to consider In return, in the spirit of equal good faith, we hope you and your counsel will equally accept a few valid points we intend to discuss in presentation of the basis of our offers to be made today”. ( Note, concessions and money to be offered in exchange for equal good faith in return.)
Now gain some credibility by a few selected concessions.
Find something to concede! It is critical to build good will.
i.e., if liability is to be admitted, why not say: “for today’s purposes, we will assume our jury will find my client responsible.”
Or, if damages are quite clear, “clearly, a jury will acknowledge some of the significant injuries you have incurred.”
However, now follow with your “defenses”
And, don’t forget, “Burden of Proof”!
Burden of Proof is available in every mediation. i.e., “While for today’s purposes, we accept many of your assertions, we have considered that at least some of the present evidence may NOT be accepted by a future judge or jury. And, your attorney will concede that until you meet all of your burdens of proof, some of your claim may not even need debate.”
“‘However, even if totally proven, there are other known legal factors we BOTH need you to fully consider for resolution today:”
Then raise a few clear “uncertainties” to a few of the total monetary damages being sought:
i.e., If liability is obvious, but comparative negligence is any factor, admit the likelihood, but use the Verdict Form to show clearly what large “deductions from damages” are available for even some small percentage of comparative fault, or,
If damages are clear, but some unpaid medical bills may be considered excessive, pointing out that “juries are required to consider ONLY REASONABLE elements of damage” ,
And, always consider sub-divisions of both general defenses. Although liability and damages are the two most generally sought “divisions” of defenses, in actuality, in Florida there are at least three other considerations: Comparative Negligence, Legal Causation and Damage Evaluation uncertainties.
Legal causation is always the biggest defense hammer. i.e., “Our experts have opined that the extent of your damages are (different from your treating doctors, etc.),or
“Evaluation uncertainties” are important. i.e., “Historically, in this jurisdiction, we have found juries have never awarded the types of evaluations you are asserting,…” And, bring a few Jury Verdicts to demonstrate!
Note: It is never necessary to make every point during your opening. Strength, not length! Pick only the most obvious and leave a few for your Mediator to carry for you.
Again, use only POSITIVES.
i.e., “We believe we have much in agreement. We intend to accept the strengths of your positions, if you will also consider our strengths, equally. If so, with mutual compromise, we believe a resolution can be found.”
Then, Close, with another thanks to all for their anticipated good faith efforts.
As you can see, in many ways when resolution is really a Defense goal, the Opening Statement of Defense Counsel can be very similar to that of Plaintiff’s Counsel. The primary difference thus will always depend upon the purpose of the mediation, that day, for the Defense.
I hope these modest suggestions, gained from observing some of our better defense counsel, will assist your own mediation presentation.
More importantly, perhaps the theme of these suggestions will promote greater use of a positive approach in opening by both sides in more personal injury mediation.
Dan, from (cool summers ) Houlton, ME.
Monetary negotiation technique in mediation is “easy”. Many would say, “boring”, “mindless” or even “dull”.
If your routine mediation monetary negotiation is predominantly your repetitive exchange of sequentially smaller (or larger) incremental numbers, painfully dragged out over your allotted total time for formal mediation and eventually, hopefully, successfully closing the initial monetary gap between offeror and offeree, it certainly may seem so.
And, many active mediation participants will resist suggestions of any change to technique that “they have always used with success”.
But, has that technique really been THAT successful? Few parties ever accept after a failed mediation that sometimes it was their method of negotiating, alone, that killed their mediation!
Mere incremental offers/counter-offers, or even occasionally bracketing numbers, in slowly closing the opening offer/counter-0ffer gap between parties, without also specific attention and overt connection to the issues, facts, law and practical considerations of the dispute, is, often at the least, wasteful of your negotiation time.
At its worst, it is a major actual cause of formal mediation failure.
Too often, this “one size fits all” technique, instead of solving the dispute, instead actually adds to the dispute tension by wasted time, mediation-killing frustration and terminal resentment in parties and their counsel and for their dashed preconceptions of the anticipated efficiency of the mediation process.
Effective negotiation takes effort and advance planning. See, ‘Mediation Negotiation Technique: Create a Negotiation Plan.” October 16, 2012
And, successful negotiation requires specific strategy and explanation. It does NOT require wasted time. it does not require posturing. It is also certainly NOT simply two sides with opposing end-goal numbers “slowly moving monetarily toward each other” until they (hopefully) meet!
And, yet, too many mediation negotiations default into this over-used technique trap. Sometimes because of one side; sometimes, all sides. Sometimes only in mindless “retaliation”!
The most common beginning is the misplacement of parties’ initial negotiation positions. This initial error is then frequently followed in multiple wasted “small step” efforts solely because of those unreasonable initial positions!
i. e., A clearly excessive “demand” is met by a woefully inadequate counter-offer. Both sides know their initial positions are unreasonable; worse, both sides fail to objectively relate their own specific beginning positions to fact or law of their dispute.
Often, unless challenged by their Mediator, both sides will then continue their initial error by simply “reacting” to their opposing side’s “ridiculous” positions, rather to their dispute. Neither side seems to be able to stop this wasted exchange. Mediator’s suggestions to return to issues are ignored. The flawed technique often spirals into one of a contest of posturing, not in finding of grounds for dispute agreement.
All mediating counsel believe they know well the alleged “messaging” intent of this kind of “contest” negotiation. But, do they really? Why even start it? And, is this messaging useful or damaging? Are low-ball offers to the high-ball demands (or vice-versa) really even necessary at all?
And, even if a useful/common technique, on occasion, for experienced mediation participants, what about the majority of lay participants who have never experienced a mediation? Many “new-comers” see all opening negotiations as their predictor for their ultimate result;
And the beginning of negotiation often foretells its ending!
A Better Method:
Effective negotiation requires thought and reasoning and purpose. And, consideration of the goals of all sides to any negotiation process. And, the ability to convey not only an offer or counter-offer, but to be prepared to also fully explain every incremental change should be the real goal of negotiation. (Too many “demands” and initial offers are seemingly made based solely upon unspoken/unexplained symbolism: i.e. Conveying a “potentially large verdict” or responding to a “ridiculous” demand, etc.)
Recently I saw an article referring to a “principled offer” or, as I interpreted the term: an offer that included not only the conveyance of a offer-number but contained with it a detailed explanation of the actual basis of the offer and the reasoning behind it.
How much time is wasted in mediation negotiation with offers or counter-offers that not only have no reasonable relationship to the reality of the dispute, but are known by the makers, in advance, to be completely unacceptable when made.
Why do we waste this time? Why should not every offer have some merit?
I have previously suggested the use of the Verdict Form in monetary disputes as a guideline for all sides to any litigation as a starting point for planned negotiation. See, “Mediation Negotiation: One Reliable Method to Evaluate Personal Injury Damages”, December 8, 2013. It should be useful for the claimant; but it is equally useful to any defendant.
At some early point in every mediation I also believe that comparing any side’s ongoing negotiation position with the ultimate potential verdict is critical to test their negotiations. Most verdicts, for money, set forth with specificity, the elements of the dollar damages sought.
I think these verdict elements of damages are, thus, the obvious basis for every “principled demand/offer”; and also becomes the reasoned explanation of why and where your position falls within the reasonable range of any actually potential verdict in your dispute.
In short, why waste time with an opening mediation “demand” or an offer in response to a demand/offer, that clearly has no basis in fact or law or the most likely verdict in your dispute?
For example, what prepared claimant’s counsel would propose a “demand/offer to settle” that is obviously greater than any possible verdict that could be obtained by the claimant? Why waste your time and credibility? Why would your opponent ever pay more than some future jury or judge? Do you really believe your opposition has not done their own verdict evaluation?
And, equally, what possible purpose for any prepared defense counsel does it serve for ANY offer that is literally less than special damages the opposition will certainly obtain in a verdict?
And yet, both nonsensical positions are all-too-common negotiation practices that are clearly a total waste of time. And, of the negotiation credibility which is so vital to mediation success. See, “Learning Mediation Negotiation Technique: First, Personal and Professional Credibility”, August 23, 2012.
To the direct contrary, I submit, any PRINCIPLED offer or demand, would totally avoid such unsubstantiated nonsense. Such a demand or such an offer would be accompanied with a REAL, objectively reasoned position that clearly explains the basis of the proposal.
In short, every offer that, although not a “best position”, at least is one that could be accepted! And, particularly if a reasonable explanation accompanied the offer!
As a mediator, paid by the hour, I am more than willing to sit and watch “wastes of time”. And, I respect the experience of every negotiator. However, when such known aggravated negotiation techniques become the REASON that the mediation fails, it is hard to remain mute.
And, at the least, it then becomes the duty of the Mediator to at least try to change the direction of the negotiations.
As a Florida “facilitative” mediator, I rarely attempt to change the parties own ultimate evaluations. I respect their superior position to know their own case. However, once sound values have been placed upon the opposing final positions, I think it is my duty to help each side “package” those final positions.
In your next mediation negotiation, please at least try principled negotiation. Convey only “acceptable’ offers with your explanations that really have a basis in your dispute. And, do it early.
Even better, let your Mediator help you package all of your valid positions with this reasoned basis.
Principled demands and offers will lead to the same end-result at mediation as “business as usual” negotiations; but, in far less time, with less expense and far less angst.
More importantly, they will end successfully far more often .
Dan, from Melbourne, Florida.
Are you ready to schedule your next mediation? Really ready? Among other practical questions you should ask: Who will be your Mediator? And, does it really matter?
Answer: Yes, but, not necessarily for the reason most believe. Mediators do not resolve any dispute; parties and their counsel do. But the best mediators are critically important for actively aiding those parties and their counsel, before, during and after formal mediation, in finding that common ground that is absolutely necessary for every ultimate voluntary resolution.
And, if resolution if not obtainable at any one mediation, the better mediators work to make the entire formal mediation process as valuable as possible to all of the participants for potential future resolution.
But, the best counsel know that in choosing Mediators, truly, “one size does not fit all”.
Accordingly, regardless of who initiates the scheduling discussion, the next time your opposition proposes not only potential dates to hold your next mediation but further nominates “their” mediator to serve, if necessary, will you be prepared to properly and timely respond with your own reasoned-nominee? See, “Be Active in Jointly Selecting Your Mediator”, December 31, 2010.
In short, do you have YOUR own “short list” of trusted (and maybe another for not-so-trusted) mediators at your fingertips? And, with actual notes of your own Mediator experiences, good and bad.
Will you have substantive objective notes already handy about your opposition’s mediator nomination? (Particularly if it is one who they routinely “insist” upon. i.e., Can hiring repetition or one-sided over-familiarity, alone, affect any Mediator’s neutrality; conscious or unconscious?)
Will you have a counter-proposal for a Mediator-nomination of your own, and substantive reasons why your nominee is a better fit for your particular client/dispute than their nominee? See, “Mediation Strategies: Does (the experience of) your Mediator Matter?, May 2, 2011.
Is your objective, substantive information easily available to you if you are not immediately totally comfortable with your opposition’s nomination in THIS matter? See, “Picking Your Mediator Should Be Like Picking Your Jury”, August 4, 2011.
And, have you ever really considered why your opposition wants (sometimes “insists upon”) “their” mediator? What explanations do they give? And, can only one mediator, theirs, a facilitator under Florida law, really be the only possible truly neutral person to serve both sides?
Or, whether one you would counter-propose could/would be a better fit for you, your client or this case? And, often, even better for both sides?
If you answered “no” to too many of the above questions, then it is clearly time for you start and maintain your own short list of trusted mediators.
Many believe it is the mediator, alone, who “makes the difference” in a large number of mediations.
Personally, I believe mediators, much like parents, receive far too much blame for mediation failure and far too much credit for mediation success. Many failures, and most successes are almost always the simple result of appropriate advance planning and preparation (or not) by BOTH sides and their counsel.
But I also firmly believe the properly chosen mediator can greatly enhance the value of any mediation experience whether to an immediate voluntary resolution or to a timely, better informed advancement to a later resolution. Although the ultimate goal of every mediation is resolution, there are a multitude of other very valid uses for mediation if resolution if not then possible
Accordingly, as you contemplate scheduling your next mediation, at the least, always be prepared to have at least one to three “trusted” names to counter-propose during your mediation selection discussions. (Or, if not, be prepared be forever saddled with your opponent’s choice for “your” mediator!)
Therefore, after first creating your all-important mediation “bible”, your Mediation Notebook, See, “Mediation Tip: Start/Keep a Mediation Notebook”, July 10, 2014, every lawyer must also have and maintain their own “short list” of trusted mediators.
You can easily begin this Mediator Notebook (or subdivision of your Mediation Notebook) by creating a complete list of mediators that have already served you in previous mediations.
For each such prior mediator, at a minimum, you should obtain a written copy of their credentials before becoming a mediator. All humans are a totality of their life’s experiences. You should know those of your mediators..
You should also keep a list of each mediation that they served you upon, your opposing counsel and the outcome at mediation. And, if not resolved at mediation, your ultimate dispute outcome, as well; many seeds sown in formal mediation take time to bloom. See, “Your Mediator: These Days Best Considered a Farmer? October 21, 2015.
Most importantly, you should always make short notes, immediately post mediation, about the mediator’s strengths and weaknesses that you observed or felt in that mediation, including pre and post assistance. At the least record your mental impressions as to whether that mediator was “helpful” to you and your client as the mediation progressed. (“Helpful” will always be in the eyes of the beholder, but it may be the most objective test you have.)
Of these, mentally rank them , one against the other, until you have a weighted list of at least three, first to last, to choose from in the future.
And, of course, depending upon your particular subject-matter practice, you will also want to rank them by dispute subject-matter as well. Different techniques and personalities will work differently in different types of cases.
Obviously, once you have this BASIC list to the extent your complete weighted list on the dispute subject is available to the dates you need, you will then always have your “short list” or the top two-four to suggest/choose from, easily available.
And, frankly, please also keep a similar (hopefully VERY SHORT) list of those to whom, for valid, objective reasons that you can/will express to the opposition, you simply would prefer to totally refuse “their” mediator for your mediation and have the Court order a total unknown to both sides than submit again to another mediation by that mediator!
Once you have your basic notebook/list, you can next also add to your existing list(s) by inquiring of recommendations from others with a similar practices in similar disputes. Make sure you inquire as to the reasoning behind the recommendations; pro and con; i.e., the ‘helpfulness”. (or not).
For these, then begin to obtain the same basic information as you have for the others you have on your list. Now you are in a good position to give one or more of them a try the next time all of your “top two-three” are simply not available due solely to scheduling or simple total rejection by the opposition. See, “Fall, A Wonderful Time of the Year to Try a New Mediator”, October 5, 2011.
And, of course, on those others, not on your list, where you gave in to the insistence of the opposition (or the Court elects someone new to both sides), repeat the same practice of adding them to your list with collection of information and recording objective, substantive notes. At the least you will be able to either quickly reject or quickly accept your opponent’s nominee the next time they are proposed, but this time with actual grounds you can objectively express.
This may sounds like a lot of work; particularly if you already think you have such a “list’ in your mind due to your longer practice. But, busy people have a lot on their mind. And, if you begin this practice, even now, like any other critical “tool” of your practice, this Notebook/List will become much more valuable with time as you merely supplement what you already have.
And, trust me, it will pay substantial mediation dividends for you and your clients.
Now, your friends will be calling YOU for your input on their mediator choices.
Dan, from Gainesville, Florida.
One of the most sought-after templates for use by new lawyers approaching their first formal mediation is an example of a particular party’s counsel’s opening statement.
Such suggested samples have merit (and are probably valuable for even experienced lawyers seeking a new approach). However, it must be recognized that any such proposed example-anything is only that: one sample/one opinion! And, in reality nothing in law or mediation is ever “one-size fits all”, much less “perfect”.
For example, which party? What subject matter? What elements of proof? What is the timing of your mediation?
Any final product of any mediation opening statement will also have to consider the relationship and personalities of the parties and their counsel, time constraints at the formal mediation, prior negotiations and many other specific factors; all subjects of prior or soon-to-follow articles by this author and obviously, others.
(I have even questioned the real importance, much less the necessity, of any mediation opening statement. See, i.e. ” A Radical Idea? Consider Waiving Your Opening Statement”, September 20, 2011. )
However, knowing that most counsel believe their clients expect some opening statement, and bowing to obvious public demand, here is one proposed opening for your consideration.
For this sample, I will propose an opening statement outline for Plaintiff’s counsel in a generic Personal Injury matter.
(Preamble: One of the most important opponent uses for any mediation is their simple ability to observe (and evaluate ) your client! They know many jury decisions hinge on the simple likability/believability of your client. Thus, at your important pre-mediation conference with your clients among other matters, you should always advise them of the form, content, and reasoning behind your anticipated opening and the extreme importance of their positive demeanor during the entire mediation.)
First, introduce yourself and those you represent. Sound trite? Remember, there are likely important people present at mediation who have never met you or your clients. This initial pause allows for your opposition to connect faces with names they have before only heard about.
(Note: Your opposition will also be evaluating you, They will be judging whether any judge or jury will find you effective and credible should a future trial become necessary!)
And, this simple beginning, as all speakers should know, further allows you to clear and modulate your voice by starting with a subject that should be hard to forget!
Next, set the mood of conciliation. State that you and your clients come to mediation, fully prepared and intending to resolve the matter. This step is a critical component to your chances of success by raising your opponent’s resolution expectations. It means that today, despite the past, if they also make an equal effort, common ground may be found to avoid any necessity for a trial by judge or jury.
Also state that you and your clients understand that there can be/are valid differences of opinion between the parties and so compromise will be necessary by all for any chance of mutual success.
Note: This is the carrot. Now, please avoid the stick: your urge to state that you are “prepared to try the case”. Such a “threat” is totally contrary to the spirit of mediation you will need for resolution and, frankly, your opposition will/should already know whether you are so-prepared or not by your efforts well before mediation.
Next, set the tone of welcome to your party opponents for their interested attendance and anticipated mutual effort toward resolution,
This tone specifically must be addressed to any insurance representative. Likely the insurance representative is the one person who had to make the biggest effort to appear! Accordingly, always respect their experience and professionalism at what they do even if you may disagree with many of their positions.
And, despite what historical bias you may feel, generally, in this dispute, recognize that any insurance professional’s mere presence at your mediation is the single most important factor you can obtain in reaching any resolution. Likely no one else in their room has any decision-making authority! Thus, be grateful they are present and interested in making an effort at resolution of your dispute.
Also, project your own positive demeanor and body language. When you ask something be given, it will always be necessary to give something in return. Simple courtesy and respect, along with a little praise and appreciation for your opposition’s efforts are small things to offer for much larger returns.
Next, complement your opposing counsel. And, thank them for their efforts to permit this important opportunity to all of avoiding the cost and uncertainties of trial.
Note that your praise gains respect for your opposing counsel while concurrently planting two important seeds for thought for the parties/insurance entities: their practical costs savings in resolution AND the unknowns of the future.
Next to the opposition decision-makers, guess who you most NEED in the other room? A friendly opposing counsel (with whom, hopefully, you have been cooperating for not only your preparation, but theirs) can be critical for everything from honestly confirming your assertions on fact and proof, agreeing to likely outcomes in judicial rulings and final outcomes, to dropping any usual resistance to ending the litigation!)
Next, confirm, that the parties have previously obtained/exchanged all of the pertinent information necessary to a resolution at THAT mediation. Frankly, if you can’t affirmatively state this, your mediation resolution chances are already compromised. Surprises to your opposition are embarrassing to those from whom you are seeking favor!
And, also confirm that all legal issues of the dispute are resolved or agreed upon. If you have still pending unresolved legal issues that one side or the other will ask to be determined pre-trial, any mediation success that day may be impossible. It is unknown finality by some future, but imminent jury, that empowers any success in mediation.
Next, in a short and focused way, now present your proposed vision of the fact and law leading to the future verdict in your dispute.
(And, always use a sample of your likely upcoming verdict to let your opposition follow your presentation!)
The order of your case presentation? It depends.
Some will prefer to comment first upon “liability” (negligence and legal causation), of the two generic burdens of proof, “liability” and “damages”, among other reasons, simply following the standard form verdict.
I usually recommend you begin your “focus” of your case with the stronger of the two choices.
For example, if you have a slam-dunk on liability-responsibility, start there. Fix your oppositions future verdict responsibility by outlining clear points of proof of why “all should concur” that the evidence requires a verdict for your client.
(This order of presentation is also preferred for those cases in which the damages to your client are less than clear, (delays in reporting or treatment, pre-existing conditions, etc.) or insubstantial. Juries are always inclined to award something if the opposition was clearly negligent.)
But, then also use only a few undisputed points to “remind” why. It is never necessary to present your entire proof if it is really that clear; just a few key points to suggest the likely verdict so as to reach damages!
Having established this”non-issue of liability”, quickly move on to the “only real issue for discussion and compromise, the likely verdict outcome for fair compensation for the related damages.”
On the other hand, however, if liability is the weaker part of your case, then begin with the “obvious injury and damages” of your client, first! Then it becomes, “the only real remaining issue is the degree of defendant’s responsibility”.
(And, to allow the opposition to follow your “proof” always present a chronologically correct medical timeline to objectively demonstrate the direct timely relationship of your client’s medical treatment to your opposition’s negligence. Note: If you cannot demonstrate this, you may need to re-consider if damages is the better part of your case?)
This choice of presenting your client’s damages, first, are focusing on the known strategy that juries want to compensate injured people, if they like the person and legally can.
Accordingly, always prove your client IS injured, early. IF the verdict is then for, or even partially for your client, your proposed verdict on damages, first, will demonstrate graphically the ultimate dollar damages to be awarded depending upon only the subsequent degree of responsibility!
Accordingly when some substantial damages are of little dispute, only after first emphasizing the strengths of your damage case, do you secondarily focus your opponents on your lesser/weaker proof of their responsibility.
Remember, your strength with an obviously injured client is that you only have to convince your opposition that a future jury will likely find SOME negligence as exposure for some damage negotiation.
(General presentation caution: Never, mis-state or overstate any issue of fact or law! Stick only with your strengths of your proof. If any proof is not a certainty, omit it or admit the qualification of it.)
Credibility is your mediation presentation goal; the opposition knows the facts and law as well as you.
Next, specifically concede a few clear obvious points against you! Yes, Virginia, you can concede points at mediation. In fact, you must if you wish any credibility.
Admissions are totally disarming to the opposition who rarely encounter such candor. Thus such honesty makes your other mediation positions easier to accept. And by the way, as confidential, no admission can never be used against you should mediation fail!
If liability has any real weaknesses, say so. Remember, you want the opposition to believe you on other more important matters. Agree that any given jury MIGHT not agree with your claim, but MANY will. And, admitting comparative negligence will always be an issue for SOME juries can be quite valuable (assuming there is some evidence, etc.)
Likewise, if you have clear damage issues, admit them and focus on those not in question. Again, agree some juries/judges might punish your proof (or lack of proof) for a proof weakness, while others will not.
But, denial of clear proof, even argument on weak points, at mediation is usually seen as simple unreasonableness that will cost you disproportionately.
End your focus-fact/law outline by filling in your likely verdict . This use of your future verdict is a powerful tool.
Seeing “their” actual verdict form being filled in, reasonably, is usually a reality check to your opposition that if resolution is not obtained, a verdict/judgment is coming!
Then, confidently propose an opening mediation settlement offer that is LESS than the likely verdict you just demonstrated! And, hopefully, even less than any prior offer.
No opposition is going to voluntarily pay you what you MIGHT be able to obtain in a verdict, some day.
And, a unilateral reduction of your last, lowest offer, sends the exact message you wish to succeed at mediation: “We are here to end the litigation (by compromising)”.
(Note: Negotiation is a larger subject for another day. However, do not destroy the reasonableness factor you have otherwise worked so hard to establish in your opening by a now obvious unreasonable initial demand!)
Now end by thanking your opposition, again, for their attendance and attention to jointly seeking a voluntary resolution to the ultimate benefit of all (except maybe the lawyers?)
My final general suggestions: Keep it simple; Keep it brief and focused. Keep it positive.
Remember, you are not arguing to a jury. You are merely summarizing for your opposition the obvious key points of proof already in their hands to direct them to find credibility to your reasoned belief presented of the likely outcome at trial should trial be necessary due the failure at mediation.
(Admin Note: Likely your mediator may offer you a “rebuttal” following your opponents opening statement. My suggestion: use this final opportunity only to insert a position forgotten in your opening raised by the defense. However, strongly resist “arguing” any OTHER given point made by the defense in their opening. (They know, already, you do not agree with many of their weaker points.)
In summary, this is simply one suggestion for one template to try. But, it includes my philosophy about the distinct differences between opening statements for mediation versus those used for trial. See, “Mediation Opening Statement: Try a Different Approach”, January 31, 2013.)
Good luck with your first effort. And, sorry for the unusual length of this article. I tried to keep the outline concise; but as an outline format, some explanations simply became necessary to explain the segments.
However, please also remember, your mediation successes will always have far more to do with your advance planning, preparation and efforts you make prior to mediation than ANY opening statement.
Dan, from Winter Park/Orlando, Florida.
Except for its increasingly obvious negative impact on ultimate mediation success, I usually have no objection to the all-too-common “High Ball/Low-Ball/Message Exchange” negotiation technique that consumes far too much time in too many mediations . After all, I am paid by the hour and, equally, by all sides.
But, as with most of my blog efforts, I choose to report my observations to you of what practices seem to work better for mediation success and those techniques that seem so repetitively to contribute to failure.
My latest negotiation observation: Organized, rapid movement toward your opposition’s (and your) “final” position is by far, the best negotiation technique for most mediation negotiation. And, the least expensive.
It is also (sadly) the least common.
Too often a claimant’s offer/demand is a high multiple of what is realistically believed will be a likely verdict. And, too many defendant’s initial offers for resolution, often despite fair “demands, are known in advance to not even permit acceptance.
How much valuable time have you also lost in your own mediations with early (and even sometimes, late) “message-offers” as one of your negotiating tools? i.e., “Your opening demand/last offer is/was so ridiculous, we will respond with an equally ridiculous offer (to make our point).”
How frequently have you found that your mediation opponent often enters a fair range of the discounted verdict-value of your dispute only at the very end of your mediation?
How many of your mediations have you found both sides using ONLY repetitious exchanges of small-unit incremental bidding mindlessly filling every minute of the time initially allotted to negotiation and often requiring more?
Such flawed techniques, although sometimes successful, do not suggest the parties used a “successful” negotiation means. In too many of these “resolutions”, usually both sides are so irritated by their effort consumed by such wasted exchanges they can hardly appreciate any resolution.
Worse, many may try to use the same technique next time because, after all, it “worked”. (However, usually, it “worked” only because one side ( often only due to the encouragement of the mediator) merely tolerated the process.)
The common denominator? Each side felt obligated to convince itself they could not have done “one penny” better! And, for one reason or another they could not conceive of any better way to feel they had achieved their goals.
There is a better way.
It begins, however, with the absolute minimum of each side having done an honest appraisal of the truly fair resolution value of any given dispute; See, Rule One: Know Your Alternative(s) Should Mediation Be Unsuccessful, December 19, 2010; and, i.e., Mediation Negotiation: One Reliable Method of Evaluating Personal Injury Damages, December 18, 2013 and a plan to move efficiently toward that honest pre-mediation appraisal. See, Mediation Negotiation Technique: Create a Negotiation Plan, October 16, 2012.
And it then continues only with the willingness of all sides to accept that their pre-mediation position may have at least some bias that may need to be adjusted as good-faith mediation education through the mediator proceeds.
It should also be recognized that most mediation successes can only begin once the parties have already very nearly approached their best pre-mediation positions. Mediators work best in these final quarters.
Thus, it is the increased negotiation pace to efficiently arrive at or near each parties believed “final position” that will allow your mediator to best work to then close the relatively small remaining gap that most disputes usually have.
Consider these BETTER expedited negotiation steps for both sides:
Set the stage: A claimant must early convince any defendant that resolution is not only possible that day, but desirable for the defendant; and, much more desirable than continuing even one more day of litigation.
Opening demands/offers therefore simply must bear some early reasonable, if not discounted, basis to the actual verdict value of the dispute. Openings that include too much “fluff” or “cushion” are easily recognized as unreasonable and a large waste of negotiation time. Give your opponent credit; trust me, they have evaluated the potential verdict value just as much as you!
It is equally imperative for each defendant to early show a claimant that they will have a reasonable opportunity, that day, to fairly resolve their claim.
Opening responses, therefore must show some reasonable relationship to the practicalities of the claimant’s minimum position. Initial offers that are literally mathematically impossible to accept are thus literally insulting as demonstrating your unreasonableness and specifically in direct contradiction to your likely pre-mediation promise to be reasonable!
If both of these suggested “better” opening moves are so-constructed, you are well on your way to resolution.
Now simply move on to better follow-up moves.
Second moves, thereafter must also seriously then reflect concessions not already made by opening offers. This critical move is the move that, if the opening position still reflected too much bias, must certainly now show a real interest in resolution. It is your last chance to regain reasonableness you lost in opening.
(Alternatively, the aggressive use of bracket negotiation may also be considered, by either side, to more rapidly alert the respective opponents of the offeror’s anticipated interest in voluntary resolution.)
Third moves by all sides again must move even more rapidly and aggressively toward the respective and advanced-known final positions. By now each of these moves should be showing early acceptance of weaknesses and admissions of opponent’s strengths as the parties each now move very near their pre-determined end-points.
(However, if any opponent is repetitious in failing to fairly participate, then and only then, is a “message-offer” really necessary. And, only with wise use of the Mediator to make sure the message is understood. In such circumstances, it is entirely permissible to continue such messages until the opposition “plays fair”)
By the fourth move, opponents should be at or very, very near to announcing they have reached their “near-final” or even actual final position. Conversations with and by the mediator are critically important to make sure this is known by the offerees.
And, now finally, with your fifth move (or before?) you are, early, at that critical juncture your mediator has long sought: that small gap that was always the real mediation issue.
And, thus, your dispute can now be much more easily resolved with the aid of your mediator and the final reasoning of reasonable people.
Why not give a “better way” a try?
And, I suggest, with these ‘better steps” alone, you will save your grateful client some serious money.
“And everyone’s getting fat, ‘cept*… (the mediator)”.
Dan, from Jacksonville, Florida.
(*See,”Mama Cass” Elliot; Song, Creeque Alley, 1967 by the Mamas and Poppas)
The Korean War is perceived by most of the public to be long “over”; just another page in history. In stark reality, however, that 1950’s war has never officially ended, but rather still, legally, smolders on. The battleground, long ago, simply switched from the battlefield to the negotiation table.
But, now, over a half-century later and because one negotiating side or the other (or both?) can never stop solely advocating their own position to the total exclusion of any of their opponents’ positions, resolution of this war seems more distant than ever. “Saving face” long ago became more important than settlement. No act of significant concession toward a conciliatory effort by either side was deemed a worthwhile negotiation tactic. Worse, any suggested effort at reasonable compromise was perceived by both sides as a kind of weakness rather than a good faith first step toward conciliation and thus rejected. And, this long ongoing one-sided advocacy-only approach, over time, only added to the total inability of these opponents to even try any real change in their previously failed negotiation technique.
In the absence of a mutual change in mediation technique, ending the “advocacy-only” approach and beginning more successful conciliatory negotiation, it is likely this half-century “war” may never be ended.
Question: Is this the world’s worst mediation effort or a great opportunity to learn from others’ mediation technique mistakes?
Many very competent litigators, on both “sides” (and many repetitive mediation party-participants), seem to suffer from this same advocacy-only mediation negotiation technique. Maybe they truly believe it is effective in a voluntary negotiation setting. Maybe they believe non-adversarial techniques will be perceived as weakness?
Perhaps, running on habit or even a jaded history, some simply cannot “turn-off” their one-sided general view of how to negotiate with all opponents long enough to adapt to new ones with each new case, party or opposing counsel. See, “Leave Your Guns at Home”, August 13, 2011
Trust me, while “advocacy-only” can work at trial, it doesn’t work in mediation..
Regardless, clearly many excellent trial lawyer advocates have a difficult time in mediation with learning and then skillfully using non-advocacy processes that are designed so differently to artfully seek a valid compromise that can be (ultimately for one side or the other) actually BETTER than trial.
Trial lawyers are initially hired solely to advocate their client’s position. Part of that ultimate advocacy, however, is to first investigate and advise their client as to the strength and weaknesses of the client’s position. However, once their client is fully advised, it then becomes the trial lawyer’s duty to advocate at trial only the strengths of the client’s position, while minimizing any weaknesses.
The audience listening to this trial lawyer at trial is either a judge or jury and they at least begin listening as a neutral.
But, there is NO judge or jury in mediation. The audience for the mediation lawyer is sitting on the other side of the table and they are not neutral! If anything, they are quite prepared to advocate their position totally to the exclusion of yours. Accordingly, resolution WITHOUT trial requires a totally different skill set for those who wish to succeed in mediation and negotiation: the skills of admission, concession, reasonableness, patience and the art of compromise.
Most trial lawyers already have many of these non-trial skills, they are just a bit under used in their usual daily work.
Non-trial lawyers, however, use these skills all of the time. In fact, they are likely the same conciliatory skills that get them hired. And they are certainly many of the skills that reward them with repeat business!
Maybe it is time to consider a specified division of labor between “trial” lawyers and other skilled lawyers who will now specialize in negotiation and mediation. Many non-lawyers who are frequently in mediation literally specialize in this craft. And become quite good at what they do.
Separation of duties between the two disparate fields of legal practice could also reduce the friction between perhaps now competing duties of advocacy and conciliation. Such a practical division might also become a bit of a parallel to the British system of Barristers and Solicitors?
If not, and soon, can litigators at least leave some of their advocacy in their trial bag, focus on the fundamental difference between advocacy at trial and mediation, while striving to learn, equally well, the skills of admission, concession, patience, reasonableness and compromise in negotiation in Mediation?
Borrowing from Rick, such a change “could be the beginning of a wonderful friendship”*.
Happy Valentines Day!
Dan, from Inverness, Florida. (*See, Casablanca)