ROADS TO Resolution ~ Closure ~ Certainty

3 Mistakes Lawyers Make In The Mediation Room That Can Get In The Way When Trying To Settle A Case

March 13, 2023 Jean M. Lawler
ROADS TO Resolution ~ Closure ~ Certainty
3 Mistakes Lawyers Make In The Mediation Room That Can Get In The Way When Trying To Settle A Case
Show Notes Transcript

Your client’s mediation is coming up.  You know your client’s position. You’ve probably prepared your client for what to expect at mediation. However, as the lawyer, have you prepared yourself for how you are going to negotiate at mediation?

Host, Jean Lawler–commercial + insurance mediator and arbitrator–talks about 3 mistakes lawyers make at mediation. Hint: Effective negotiation at mediation is about more than just knowing your client’s case! Listen to this episode to learn more about mistakes to avoid.

To read the full episode transcript please see the Podcast Website.

About the Host:

Based in Los Angeles, CA, Jean Lawler is an attorney and mediator, focusing on commercial, insurance and civil litigation matters pending at the trial and appellate levels - wherever filed. She regularly mediates a wide variety of insurance, business, and tort matters, as well as federal ADA accessibility lawsuits re architectural barriers and websites. CIPP/US (Certified Information Privacy Professional) certified, Jean also mediates matters involving data breaches, ransomware, and cyber losses. She has mediated hundreds upon hundreds - thousands - of cases over the years with a myriad of issues. For a more detailed sampling of the types of mediations that she has conducted and participated in, both when in practice and as a full-time mediator, please refer to her web page detailing Representative Matters.

Prior to becoming a full-time mediator in 2017, Jean was a Senior Partner in a Los Angeles based litigation firm, representing corporations, professionals, non-profits, individuals, and insurers in a broad range of matters, at trial and on appeal - mediating hundreds upon hundreds of cases over the years. Her legal experience has been diverse and international, and she has a deep knowledge of the insurance industry, insurance policies and the various risks they insure against (primary, excess, reinsurance, program, surplus lines, London Market, and international insurers). She also served as a Managing Partner of her former law firm, at times chairing the firm’s Insurance Law, Cyber & Privacy Law, International Law, and Business & Real Estate Transactions practice groups and, ultimately, served her many clients as counselor and trusted advisor.

As she would tell you if asked: “I absolutely love what I do! I would be honored to serve as your Mediator or Arbitrator.”


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Thank you for reading this transcript of the ROADS TO Resolution ~Closure ~Certainty Podcast for the episode entitled, “3 Mistakes Lawyers Make In The Mediation Room That Can Get In The Way When Trying To Settle A Case.” To improve readability, this clean verbatim transcript also includes additional headings (not part of the audio). The transcript is human generated, so there may be minor errors. Thanks for your time!


[intro music]


JEAN LAWLER:


Hi, I’m Jean Lawler, your host of the ROADS TO Resolution ~Closure and ~Certainty Podcast. And it's great to be here with you today. So, what’s on my mind? Well, three of the biggest mistakes that I see attorneys make when they are in my mediation room–and that room could be an in-person conference room or it could be in a Zoom room.  It doesn’t really matter, the mistakes tend to be the same. So, let’s get to it. 


What do I think three of the biggest are?


Mistake #1: Lawyers Don’t Have the Decision-Makers Truly Available and Participating in the Mediation


Well the very first one I think most would agree is: Where the parties are there to negotiate but the decision-maker is not in attendance and not participating in the mediation. Not having the decision-maker there, the one who can write the check or the one who can agree to a settlement–if you’re on the plaintiff-side–that really is…it can be the end of the mediation before it even begins. So, having the decision-maker there, or a decision-maker who has sufficient authority, or–as so common with insurance companies–if the person has enough authority to make a decision and then also, if they need, that they can contact their supervisor or whoever else it might be at the office, in case the numbers are bigger than whatever authority that the claims representative came with.


But I’ve seen it with plaintiffs as well. There may be a parent, or a spouse, or a friend, or others–contractual partners that need to be consulted with–before there can be a settlement. Anybody who’s a decision-maker needs to be at the mediation. Okay? …Needs to be participating in the mediation, and with Zoom it really is, it’s so easy that there’s almost really no excuse to not have the decision-makers truly available and participating. So that’s what I see as the first of the three biggest mistakes that lawyers make in my mediation rooms.


Mistake #2: Lawyers Adopt Client’s Emotions in Mediation


The second one that I would mention is: Sacrificing strategic negotiation to what I’m calling the emotions of the client. The clients on both defense and on plaintiff-side–there’s plenty of emotions usually. Everybody believes that they are right, that their positions are correct. Most people believe that they will prevail at trial or even if they don’t believe they will prevail, they think they have a better case than the other side, or whatever it might be. And clearly if you go to trial, someone wins and someone loses, and when there are other emotions out there like anger or upset, frustrations that boil over, that can cloud one’s judgment. 


And when I see lawyers adopting their client’s angst and anguish and emotional outbursts even, that really says to me that those lawyers have —maybe you could say they have crossed a line so to speak–but that they are not in control anymore of their own emotions so then they are not really thinking strategically. They’re thinking emotionally. And emotions for clients are fine, of course, but for the lawyer who is supposed to be guiding the clients–don’t sacrifice. They should not sacrifice that role for strategic negotiation to the reality or the fact of adopting the emotions of the client. 


The lawyer should not be screaming at the mediator. The lawyer should not be rolling eyes and being so disgusted at the defense or the other party, whatever it might be, that they are not (again) guiding their client toward a good resolution, or one that the client might be able to live with, or at least to have explored it so that the client will know if they have the possibility of resolution at that point in time. 


Again being mindful that most cases do settle, so it is really very important that on a mediation day that not just are the decision-makers present, but that they are present with lawyers who are in the right frame of mind to help the client over the emotional reactions, the emotional humps, and to think strategically and make conscious decisions and, you know, get their best shot at trying to get the case settled that day, anyway, or at least set the stage for the future settlement.


Mistake #3: Lawyers Make Settlement Offers/Demands in Mediation That Are Not Credible


And then the third thing that I see is: When lawyers make, what I’m calling here, incredible demands or offers and then the other extreme, giving up too soon. I use the word “incredible” just as a off-shoot of the word “credible”. If someone is demanding an eight-figure settlement number for an opening offer for a case that should settle with a six-figure number perhaps, maybe a low seven-figure, to be demanding eight is not especially credible. 


They are sacrificing their own credibility in the process for this, and that’s not good. The lawyer should come in knowing his case, knowing her case, and knowing what the damages really are or are not, what the maximum recovery might be in that particular jurisdiction for whatever the damages are. And trying to use punitive damages or in an insurance case, oh insurance bad faith, as a way to really ratchet up the response from the defense and in turn then making a huge demand, is not going to get the response that the plaintiff is hoping for. 


By the same token, for the defense to come in and give a nuisance value, and nuisance value can range from a low four-figure number to six or seven-figures even, depending on the nature of the case and what the issues are and what the damages are... But, just only going to nuisance value without recognizing the exposure or the value of the case, and of course, starting negotiations at very much less than at the end of the day which you would hope to pay, you know that too triggers reactions from the other side where there could be a loss of credibility on either side. 


Bonus Tip: Lawyers, Don’t Give Up Too Soon in Mediation!


And then don’t give up too soon. I’ve had lawyers who come to the mediation thinking it's never going to settle, and I say, “No, no, no, no, no, no. You can’t think that way. You have to think positively.” 


But then when there are lawyers who want to just leave, or there might even be screaming and shouting and not even want to get started, but hopefully that…That is very rare, but it has happened. But some lawyers think that just threatening to walk out, and then walking out, is a good strategy. I would say to you that I don’t think that it is. Hang in there. Make the time count. Use the time you have and try and get to the best deal that you can or at least narrow what I call “the dance floor”. You know, between the last offer and the last demand, to a point where you know what you’re walking away from, or where you know where you would be back to begin with if and when you resume. Actually, it's when, not if, because of course if you don’t settle in a mediation you will be talking settlement again and a judge will be sure to see to that. 


So, do your best. Never give up too soon. You know, stranger things have happened, right? And try and make your demands–opening demands especially–in a reasonable and not in the realm where they are insulting–the insulting aspect of it. Make them in a realm of reasonable or somewhat credible, that kind of thing. Okay? Because everybody knows that you’ve just got to work to make the demands go up or down–the offers go up, the demands go down. And so while some of it is fine, be credible. Be credible. 


Alright, so good luck to you and all the best to you in your mediation practice in your negotiations when you are trying to get cases settled. I’m sure you’ll do a wonderful job.


Thanks so much for joining me. Subscribe to my YouTube channel or my podcast. They are everywhere where podcasts are able to be found. Alright, thanks again. We’ll see you next time. Bye bye. 



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