Mediation: Prepare for Trial, Win at Settlement

A colleague of mine, here at the Firm, is fond of quoting a line from the 1961 Inauguration of one of our Country’s greatest Presidents, John F. Kennedy: “Let us never negotiate out of fear. But let us never fear to negotiate.

While President Kennedy was referring to our foreign policy, his approach to our country’s adversaries can be applied just as effectively today to contested issues in our civil justice system.  Representing Plaintiffs in personal injury matters requires a dedication to a process.  That process entails knowing who you are representing, understanding the harms suffered by them, and establishing the facts to support why the injured are entitled to compensation from another person, company, or entity.  The key in civil litigation is how to present those key elements in a manner to effectively achieve the end result: the recovery of money damages to make up for the harms and losses.  Preparation is at the heart of such an undertaking.  Then, once armed with all of the necessary facts and proofs, a plaintiff is ready to present the case for consideration of money damages.  How does that presentation occur?  The traditional approach has been a jury trial in a courthouse.  But while trial by jury, established by the Seventh Amendment to the Constitution, remains an effective means of redress, in recent years, the concept of mediation has provided an equally effective alternative.

Mediation is when a neutral third party intervenes in a dispute or negotiation to assist disputing parties to voluntarily reach a mutually acceptable agreement.  The mediation can take place in any office space with multiple conference rooms, though its outcome can have the same positive resolution as a court of law.  Historically, judges appointed to a permanent position in state and federal courts have worked until retirement age, in some jurisdictions a mandatory retirement age, before leaving the profession entirely.  Many of our judges represent the brightest minds in the legal field and when they leave the bench, those resources can be lost.  However, in recent years, the legal community has found a perfect role for retired judges—serving as mediators.

The role of the retired judge in mediation is not that much different from the role a judge serves at trial.  The mediating judge requires respect for the process, and at its foundation is preparation.  In every case that I have successfully mediated to a conclusion—and in my twentieth year of practicing law, there have been many—every mediator has complimented the attorneys on the preparation that went in to the presentation of the clients and the facts.  It is almost universally the true that cases that I have failed to resolve at mediation were due to my adversaries not taking the case seriously.

An effective mediation is one where the attorneys can best convey the strengths of their client’s case, while considering the mediator’s thoughts as to how a potential jury might perceive both strengths and weaknesses of each side.  It is only through years of experience on the bench handling jury trials, that a mediator can lend such insight and credibility to his or her opinions.  Therefore, mediation requires a level of understanding of a case that makes preparation by the attorneys no different than presenting the case to a jury at trial.  The negotiation towards a settlement can only be effectively achieved once a Plaintiff’s attorney is confident in his preparation.  The trial ready plaintiff’s lawyer is not fearful of a failed outcome, but focused on a positive result, negotiating payment of money damages, by a defendant, to the injured client in a way that can be achieved without ever stepping in to a courthouse.  In such a scenario, a trial by jury can provide no better result than a settlement at mediation.


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