I recently learned that many plaintiff lawyers are deciding to forgo a presentation at the start of a mediation. You may know from past blogs that mediation is increasingly used as a form of alternative dispute resolution. Virtually every major case is mediated. Whether the mediation was worthwhile is the subject of another blog. Often mediation can be successful.
My approach has been to treat mediation as a very important part of the process. I was surprised to hear at a conference of a week or two ago that some lawyers are choosing not to present their case at the outset of the mediation. I disagree with that approach. I believe it is incumbent upon your lawyer to present the case very thoroughly and very coherently at a mediation. I don’t think there is an advantage to be had by simply waiving what you have a right to say and then proceed directly into the mediation. Why do I say this? Number one, you’re there to show your case to the the mediator despite his/her not having final control. In spite of the limitations in the power of a mediator (as opposed to the authority of an arbitrator) there is an advantage in impressing him/her with a well presented case. You’re there as well to impress the other side, particularly the insurance person who comes, presumably, with money to have the case resolved. I think that person needs to know that this case can be presented at a trial consistent with the manner you present it at mediation. There are a number of people you want to show that you believe in your case. Not only your own client who has a right to see his/her case presented effectively and strenuously, but the other side- insurer, lawyer, and mediator. This is their opportunity to hear from you, and your opportunity to synthesize all the evidence that has been marshalled to date. That evidence can come from documents, depositions, governmental investigations that bear directly or indirectly on your case, etc.
I think the client would be well-advised to discuss preparation with the lawyer before that day of reckoning comes, before that mediation. The mediation is the last day of reckoning before the ultimate reckoning, the trial. The argument against presenting something at mediation is why would you want to tip off the other side to what your strategy is? Well, my answer is your strategy should be pretty evident by the time of the mediation. If the case has been prepared and gone well, then your strong points won’t be a mystery to anyone. Indeed, the other side should know what the strong points of your case are. Lay down the gauntlet and let them know what arguments you will make at an opening, in the course of a trial, or in the closing.
Are you giving up too much? What about your closely guarded strategy? Obviously you don’t have to say 100% of your case but the basic thrust, the themes, can be revealed in my opinion. Surprise is typically something from an earlier day. Lawyers liked to engage in sandbagging. But the question is how much, if anything, are you giving up. Not much because the themes have already emerged; all you are doing as plaintiff’s lawyer is synthesizing. Now if in the course of discovery you’ve made the case very strongly and clearly, then I don’t think you’ll be surprising them when you present in a very strong and effective way, your case at a mediation.
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