I’ve been mediating now since 2004. It’s interesting to look back and see how practices and habits have changed or, more precisely, to identify trends. I’ve actually noticed a number of trends. I and others here at BAY will share our observations about them. One trend I see blossoming is a tactical decision on both sides of the “V” to not see mediation as the place to resolve your case. And, frankly, given ADR history, this is kind of odd.
Years ago, before there were such things as mediation houses and online systems that permitted a lawyer to schedule a mediation with a few clicks, lawyers settled cases by getting on the phone with one another or even meeting for lunch. Typically, we knew each other, and we knew we’d have other cases in the future with each other. There was no need to get angry or to engage in client-impressing strutting because the clients were not there. This is not to say that folks did not engage in a little smack from time to time, but it is to say that the conversations were truly used to see if settlement was achievable and, if so, to start framing what a settlement would look like. Sometimes it took one call, but more often it took several calls, but the lawyers truly were bringing everything they could to get the case resolved.
Then, the bar got bigger. Defense firms grew bigger. Large plaintiff’s personal injury firms appeared. Saturation advertising began, and each lawyer now had more cases, more volume, less time for chit chat. Mediation arrived just in time to take over the function of getting cases resolved. Once on the calendar, each participant knew s/he would be giving that day exclusively to the goal of getting the case resolved. We began to hear all mediators say, “today is the best day to get your case resolved because we’re all here and focused on that one mission.” And for many years, the vast majority of lawyers did come to mediation with a real desire to resolve the case.
Increasingly, however, mediators are watching changes take place where mediation itself becomes just another tactic, just another tool in the litigator’s briefcase. From plaintiff’s lawyers, I have heard lawyers say, “I want to see how high the insurer is willing to go today because I know they’ll pay more down the road to avoid a trial.” Of course, this isn’t always true. I have heard lawyers say, “I don’t come to mediation to settle because the insurer almost never has the case properly evaluated and they need us to educate them about the real risks and exposures in the case, and when they know the true risks, they’ll go back to the ranch to get more authority.” This is sometimes true and sometimes not true. And equally on the defense side, I now have adjusters coming in saying of the low number they brought with them, “I came with what I came with and to see what kind of number it’s going to take to resolve the case,” and they seek to get the plaintiff to the lowest possible number on an offer that can be held open for a couple of days so the adjuster can go back and ask for an authority number s/he knows will resolve the case.
In the end, all of these strategies hinge on the notion that the day of mediation is not the last opportunity the parties have to resolve the case. And while this is technically true, for all practical purposes, if both sides really would come to mediation fully prepared to resolve, the odds of resolving shoot up astronomically. And there’s no need to put more bank money at risk by having to secure medical testimony. I find that when an insurer truly has been fair in its evaluation, odds of settling are very strong, and when the plaintiff comes in already knowing what her expenses, future expense and lien obligations are, she’ll know the range she has to work with to get the case resolved.
Mediators are only facilitators in the end. They can help open better lines of communication between the disputants or litigants and share earnest evaluation of the respective positions offered by the parties. They can urge and push the parties to get beyond the obligatory puffing and gamesmanship that must take place, but it is very difficult for mediators both to bring each party a true sense of what the risks are and to do that in time to permit the development of authority on both ends. Let’s face it, while we commonly hear the term “settlement authority” used in the context of a corporate defendant or insurer, plaintiffs develop “settlement authority” too by figuring out how aggressive they need to be with lienholders and funding companies they are obligated to pay and, even, with how much they’d be willing to cut their fee (hey, it happens!). It is only the risks involved in the case that can influence that authority – on both sides. The mediation process is nearly always successful if both sides apprise themselves of the true risks involved before they show up for the mediation.
If mediation became popular, in part, to help busy attorneys and claims professionals create one day on which they could focus their attention on a case long enough to settle it, the move now to use mediations as just another step to guess at what a case is worth is a move away from the intrinsic value of mediation.
See you at mediation!