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Lombardi Law Firm

What’s mediation and how does it work?


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4/24/2014
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Steve and Katrina participated in a mediation for a client recently, and I went along.  As a law student  I have observed and participated in simulated mediations in class, so I had at least a basic understanding of the how it would play out.  But after attending in real time it was a better learning experience.

Mediation is a process where two or more people who are arguing over some issue can have a neutral party attempt to help them find some common ground and hopefully resolve the problem.  For lawyers mediation is another tool to use to attempt to resolve the case without going to trial.  There are many reasons why a lawyer or a client might prefer mediation to trial:

  • You’ll have to spend more money if you go to trial.
  • If you choose to go to trial, you may have to wait longer for the result.
  • You take on more risk if you go to trial—you can’t control the law, the judge or the jury, but you do have some control over a settlement in mediation.
  • At trial, a client might have to say something on the stand that could hurt him.
  • The client might have a pressing financial need, so much that he  would prefer to get $50,000 now than $75,000 a year from now.
  • If the client dies or becomes disabled before trial, whatever amount you could have won could be reduced or might even go to zero.
  • If the client doesn’t have confidence in the lawyer, he may want to end things sooner rather than later.
  • The financial awards you can get at trial might be taxable; settlements where you can control the settlement language may not be.

Deciding to have a matter mediated is a personal decision, and while a lawyer can help a client figure out the pros and cons of going to mediation, it’s ultimately up to the client whether mediation is a go.  If you have a perfect case and are comfortable taking on risk, trial should be fine for you.  Otherwise, you should consider mediation.

As Steve says, "If you can't afford to lose, then you talk settlement."

Steve gave me a crash course on his approach to preparing mediation, and the main points are these:  You need to have notes prepared, with your entire case outlined in one place, so that you can find things quickly and explain things easily.  You need to know the strengths and the weaknesses of your case.  You need to figure out which facts give you leverage, and you should plan to bring them up at strategic times.  I was surprised that Steve didn’t have an exact number in mind as to what he would settle for, but then again, that’s really up to the client rather than the lawyer. 

We had our mediation at the Thune Law Firm in West Des Moines.  Our mediator was Attorney Paul Thune, an all-around nice guy.  Although I have no other mediation setting to compare it to, I found that his offices were set up beautifully for mediation: it looked as though everything had been arranged specifically to appear calming and neutral.  The walls were a sober shade of blue, the furnishings and decorations were dark and tasteful.  Paul had candy and cookies set out for us and offered us drinks.  The fellow is an excellent host, but he also clearly knows that if you make everyone happy and comfortable, they’ll be more likely to settle.

Our client, Betty[*], was a woman who had been injured on the job, and the party opposing her was the insurance company of her employer.  Once everyone had arrived to at his office, Paul separated us into two rooms: Steve, Katrina, Betty, and I sat in one room and the insurance company’s lawyer, Ken[†], sat in another.  Putting the parties in separate rooms is standard for mediation, because it allows the parties to strategize and speak freely to the mediator. 

Paul started off the mediation with a little speech to the client.  He made his role in the process clear—that he didn’t represent either side in the case, that he wasn’t going to pressure either side into accepting a settlement, and that he was just there to help the parties come to an agreement.  Paul also told the client that he would not tell the opposing lawyer anything she said to him unless she specifically asked him to.  She could ask him questions, for example about what moves he thought the opposing lawyer might make, and she could ask him to leave the room if she wanted to consult with Steve and Katrina. Although it may have seemed like the client was totally in control, the reality is that the lawyer gives the advice and he, in this case, Steve, is the one in control.

Katrina gave the opening statement for our side of the case.  This wasn’t a formal speech, just a conversational explanation of the strengths of our case, an overview of the facts, and what we wanted to get out of this mediation.  Steve had supplied Paul with the pertinent facts of the case beforehand (a move that doesn’t just make the mediation more efficient, but also subtly can subtly influence a mediator to take your side), and Paul asked questions where he needed clarification.  Steve, who had been energetic and excited all day, interjected with a few smartly-placed remarks highlighting the strengths of our case.  Once Paul had an understanding of our case and a demand, he left the room to talk to the opposing lawyer.

Paul was gone quite a while and eventually came back with an offer.  The remainder of our time consisted of counteroffers and offers, and (spoiler alert) eventually we came to settlement that pleased both sides.  But the part that was valuable to me was observing the strategies used, by Steve, Katrina, and Paul. 

First of all, our time without Paul was mostly spent listening to Steve regale us with anecdotes about his illustrious career.  Maybe reminding himself of his victories is Steve’s way of staying in the mindset to win, but it also kept things positive for all of us.  Steve did this when Paul was in the room as well, and told us ... well Steve won't allow me to tell you why he does this. He said I can't give away all his secrets. This gave Steve an advantage that Ken probably didn't have—the other room had no audience, and Ken was younger and had had a significantly shorter career to talk about.  While I can’t say for sure what went on it that room, I think it was purely business.

Secondly, Paul adhered to his promise not to force a settlement neither party wanted, but he had to do a fair amount of wheedling to get the parties to agree.  He is obviously very patient, experienced and was thinking a few steps ahead throughout the process.  He sometimes offered his opinion on where he thought the offers from the insurance side might top out, or how he though the insurance company lawyer might respond to certain demands.  What it came down to was that Paul and Steve negotiated between the two of them about what offers to make.  At one point, Paul asked us to give up a large chunk of our demand, and his reasoning was that on the next go-round, if we gave up a smaller amount, it would send a message to the other side that would cause them to offer more.  Steve also had some novel ideas about how to persuade the insurance company to offer more. 

On a related note, Steve got on with Paul very well.  They had gone to law school together and Paul had mediated quite a few cases for Steve, and there was no pretense or stiffness between them. The talked straight at one another, didn't hesitate to speak their minds and kept each other reconsidering positions.  They had a wonderful rapport, and although they both stayed focused and professional, there was plenty of chat between them about topics other than the matter at hand.  It was clear they both enjoyed it, and it was a pleasure to witness.  Beyond the fact that good rapport with the mediator gives you a strategic advantage, it probably helped to offset any tension the client may have been feeling. 

I wouldn’t have been surprised if tension was running sky-high in the other room.  One word about Ken’s position: he had less power over his side of the case than we had over our side of the case.  He had been authorized to settle for a certain amount and once Steve pressed him above that number, Ken had to clear all potential offers with an insurance adjuster over the phone.  She, in turn, was likely authorized to give up a certain amount of extra settlement money per day, so Ken must have had to negotiate with her.  Since our client was actually there, we had no such restrictions. 

After the mediation had concluded, Steve had a stern talk with the client and her husband.  He advised them to tell no one—no one—about their settlement.  It wasn’t merely that the settlement still had to be approved and checks had yet to issue.  It was a question of peoples’ greed.  Apparently what normally happens when someone wins a large settlement is they tell people and suddenly everyone’s their friend.  They get flooded with requests for money and they feel pressured to give in.  Before you know it, their settlement is gone.  Steve advised the clients to deposit the money in a bank, and not a local one, because people talk.  He told them to place their settlement papers in a locked safe at home.  He also suggested that they pay off their mortgage, not just to have a debt paid off, but to be able to honestly tell people that any money they have won has been spent.

I was pleased with my mediation experience and I would recommend mediation to any client who has doubts about his case, gets anxious about risk, or just wants to get the whole thing over with.  It’s important to note that mediation is a lot more personal than going to trial, in that the client has a lot more control over how a mediation turns out.  This is a strong advantage of going into mediation, but it also means that every mediation is different, and that the process and strategies I’ve described may not be the same as the ones you experience.  Who your mediator is can make a big difference as well, and while I can now strongly recommend Paul Thune, I have no advice on other mediators.

Your outcome in mediation will also depend a lot on your lawyer; not just his skills, but his willingness to invest his time in your case.  Steve did an excellent job representing this client—he knew her case inside and out, and had his strategies down pat.  He put a lot of time into the case and it paid off for his client.  I’m not just saying this because I work for him: Steve did an outstanding job for his client, who he obviously respected and I would recommend him in a heartbeat.  I have no doubt he would do the same for any client. 

If we can help you, call the Lombardi Law Firm to speak with attorneys Steve Lombardi and Katrina Schaefer. We can be reached at 515-222-1110 or by emailing us at [email protected] and [email protected] We look forward to your call.

 

[*] Not her real name.

[†] Not his real name.



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