In general, most personal injury cases and civil trials are solved through a trial and some mediation or settlement. Yet many lawyers seem to see mediation as a mere formality, or at least which they do not seem to try hard at. They can scribble some notes, talk for a bit, and then resolve the process, or it will not.
Instead, lawyers must prepare for mediation and treat it just as important as a trial. Here are several simple tips and reminders for lawyers to resolve a settlement in a good way for your clients.
1. Prepare your client
Ultimately, mediation is not between you and the opposing side’s lawyer but between your client and the opposite side. There is no point in settling a mediation if the client ends up rejecting it afterward.
Consequently, prepare and inform your client about what the mediation process is like with these tips. The client must understand that the other side will have a completely different perspective on the personal injury incident, and thus may end up saying things that the client strongly disagrees with. And the client must understand that a settlement requires well, settling. The client will not get everything they want and will have to compromise to have a successful mediation.
2. Be Patient
This is a tip which both you and your client should be prepared for. A successful mediation is a challenging, stressful affair that typically lasts for several hours. Often, the two parties will be in separate rooms, with the mediator serving as a go-between, talking with one side and then the other.
Your client may get impatient and try to jump on any offer after a few hours, but remind the client that patience, not charisma, is an essential trait a top negotiator can have. You may even suggest that the client should bring something to occupy themselves when you are forced to wait.
3. Choose the Right Mediator
Lawyers haggle with each other for the exact composition of a jury, and a mediator should be no different. Do not just accept the first mediator proposed by the opposing side, and take time to find a mediator that you can trust.
All good mediators should have multiple traits. They should have the training, knowledge, and experience to understand your client’s situation and work out this dispute. They should be patient, just like you will need to be during this complex process. And they should have a clear and written description of their ethical and confidential standards.
Ask around using your professional networks, or even search online using a place like Mediate. The key is to make a real effort to find the right mediator instead of just accepting whoever the other side suggests.
4. Be Realistic
There is no negotiation “tactic” that is worse than the idea that you should name some outrageous settlement price at the start because you can just set the starting line there and negotiate down from there. And in fact, you may have to work to stop your client from suggesting that approach because he has watched too many trial or business movies.
Before the mediation, sit down with your client to discuss a good, acceptable figure and an excellent best-case figure. When negotiations begin, use the good best-case amount as the opening number instead of trying to go above it with the hopes of dropping down to the good best-case figure.
5. Are you speaking to the right people?
There is nothing more annoying than going through the mediation process, reaching a deal, and then finding out that the person you were negotiating has to speak with their boss and CEO to actually confirm the deal. All too often, that authority will reject the deal and you will now be in an even worse position.
Of course, it is not reasonable to expect to negotiate directly with an insurance giant’s CEO. But if the person on the other side does not actually have the authority to fully settle the case, walk out. When looking for a mediator, you should also discuss how they will ensure both sides will have the proper settlement authority. That includes you as well, so make sure that you actually have the authority to settle for your side and client.
6. Set the Right Tone
A personal injury mediation can be a highly contentious affair, with both cases often convinced they have been wronged. It is thus important to show that you empathize with the opposing side, are reasonable, and are willing to compromise.
Your opening statement is the right moment to do just that. Go over the factual disputes between the two sides, but stay calm and do not bluster or threaten even if your client may love such a performance. Talk about the weaknesses in your case and how you will address them instead of hoping that they will just go away, and talk to both the opposing side and the mediator. A calm approach is the best approach for this difficult matter.
7. Be Prepared
This final tip may seem simple and obvious, but it is one which lawyers neglect. You should be just as prepared for the mediation as you should be for the trial itself. That may not require quite as much work as for a trial, but you should do your due diligence beforehand. Investigate leads, present your client’s side of the story complete with all of the facts, and show that your side’s argument is strong. A jury may be fooled if you have nothing more than pounding the table, but a mediator will not.
Remember that in most personal injury cases, your client is more likely hoping for a reasonable, swift conclusion to this difficult affair as opposed to the largest payout possible. By doing your homework and using good negotiation strategies, you can make this process much easier for them.
