Britton: Prepare, prepare, prepare and then prepare some more!

I recently had the pleasure of completing the ICLEF Civil Mediation Training to become a registered mediator. It is a phenomenal program and I highly recommend it to anyone, so long as you are prepared to commit to the process and have some fun with your colleagues. The program surprised me in a number of ways. I thought after 15 years of litigation and countless mediations that I would not really learn much about mediation. I was wrong! I learned a lot, but I want to focus here on one thing that really surprised me the most. Our faculty of extremely experienced and excellent mediators shared one easily avoidable obstacle to settling cases at mediation: a lack of preparation. Whether this is your first mediation or 100th, using the following tips for preparation will put you in a position to achieve the outcome you and your client want.

Who are the decision-makers?

Who is going to decide how to pay or accept to settle the case? In some cases, that may appear easy to answer, and you may think you know the answer. Nevertheless, ask the question and confirm that you know and that those decision-makers can attend in-person or virtually (if permitted). This can get complex in a hurry, though. A personal injury plaintiff’s case may involve liens, and resolution of those liens can sometimes influence whether a case can settle. The amount the lien can be compromised for directly impacts how much money the plaintiff will actually receive at the end of the day. Similarly, on the defense side, the insurance policy or policies may impact who has the ultimate right to agree to a settlement. Some types of policies require the insured’s consent to settlement or have a large deductible that requires the insured to pay a significant portion of the settlement from its pocket. Also, if your case involves multiple insurers for the same defendant, it is helpful beforehand to understand the order of coverage and if all carriers are in agreement on the order of coverage.

What information do the decision-makers need?

Once you know who is making the decision, you have to know what information they need and when they need it so that they can be prepared for mediation. Obviously, you as the lawyer must be prepared for the mediation, but you also need to use your best efforts to prepare the client/decision-maker for mediation. That means having frank conversations about the legal arguments that can be made and the facts that can be proven at trial if the case cannot be settled. Additionally, ask for the date by which those frank conversations need to occur, especially in the event your point of contact has another person or company with whom they need to consult with prior to arriving at mediation.

Talk to opposing counsel

Is there information and/or documents that you need from opposing counsel in order for you to fully evaluate the case prior to mediation? Conversely, is there information, documents and/or legal theories that you want to use at the mediation but have not shared with opposing counsel? If so, it behooves you to talk to opposing counsel. Surprising the other side with new information at mediation is unlikely to help you settle the case at mediation. Sometimes surprises happen and cannot be avoided. New information can pop up right before mediation. However, holding something back and springing it on your adversary at mediation may not have the effect you are looking for. In my experience, a surprise piece of evidence or legal theory is brushed aside and not given much, if any, weight at mediation. If you believe the evidence or theory has merit and strengthens your case, provide it in advance so your opponent cannot just brush it aside.

The settlement agreement

Presumably, if a settlement is reached, the parties will enter into a settlement agreement. Does your client need any specific provisions within that agreement, like payment within so many days, confidentiality, non-disparagement, etc.? If so, again, you should speak with opposing counsel prior to mediation about including those terms and consider sending a draft agreement in advance of mediation so that any objections to the provisions or other terms can be ironed out before negotiations begin. Courts in Indiana are generally reluctant to force a settling party to include specific provisions or terms in settlement agreements where those terms have not been specifically addressed prior to settlement negotiations.

The confidential mediation statement

Prepare a confidential mediation statement and submit it to the mediator as well as provide a copy of it to your client. I was surprised when our faculty told us that often, they do not get a statement from one side or, sometimes, both sides. That is a mistake. This is your opportunity to lay out your side of the case to the mediator. Moreover, it also helps to crystalize your arguments and the evidence you intend on presenting. Cases can often involve complex sets of facts and disputed areas of law. Being able to simplify and distill those issues down to a short three-to-four-page statement will help you think about the case more clearly and enable you to express your thoughts on it more succinctly and persuasively. Don’t be shy — include pictures of the damage or diagram if it speaks to the injuries or liability in a case. A mediator may also be able to provide their opinion on how those visuals may work for or against your client at a jury trial.

The opening

Mediations used to commonly involve opening statements by counsel. However, it has been a long time since I did a formal opening at mediation. I usually leave it to the discretion of the mediator whether they think it would be helpful to resolve the case or not. Nevertheless, I recommend preparing notes as to how an opening statement at the mediation would be conducted by your representative side. When a mediator visits with you and your client for the first time at mediation, if an opening is not formally conducted, those opening statement notes can be used in that initial discussion with the mediator, allowing you to provide the mediator with your overview of the case.

Questions you should be able to answer

Inevitably, your mediator is going to ask you questions about your case. Those questions might involve what your best day versus your worst day at trial looks like; how you see fault being apportioned among the parties and nonparties; if you foresee issues with a key piece of evidence; etc. Think about some difficult questions that your mediator might ask during the mediation and develop answers to those questions.

Taking all these steps does not guarantee success, but as the saying goes, “Failing to plan is planning to fail.” Put yourself and your client in a position to succeed by preparing well in advance of mediation. Doing so will help eliminate surprises and stress for you. Additionally, mediation could be one of the few times your client gets to see you advocate on their behalf. Your preparation will shine through and leave a positive impression upon your client, whether the case is settled or not.•

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Louis J. Britton is a partner at Kightlinger & Gray LLP. Opinions expressed are those of the author.