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Mediation: One Sample for a Perfect Defendant’s Counsel Opening Statement?

July 20, 2016

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!)

Outline format:

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.

Now, summarize:

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.




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