“Be Prepared”

If you were a Girl Scout or Boy Scout as a kid, you are very familiar with the phrase “Be Prepared.” Even if you weren’t, I’m sure you are well aware of the phrase. My guess is you’ve heard it in a trial advocacy course or at various seminars when trial judges speak about the things they wish more attorneys did before appearing before them. If I recall correctly, it was usually the number one recommendation. Guess what, it applies to mediations as well.

But what exactly does this universal phrase mean? The obvious thing that comes to mind is to know the facts of the case. Unfortunately, many times I have witnessed an attorney in opening statements bumbling over, or in some circumstances, not knowing the details of the case. Sometimes its a minor issue, but not always. The details of the event that has lead everyone to this day, the damages being sought, and yes, even sometimes, the name of the client should go without question as being important enough to keep straight. This is applicable to attorneys on both sides of the “vs.” Just as important is to know what was actually said in the deposition. Stating that a witness said a certain thing that supports your case only to later be corrected by opposing counsel - or the classic, “Show me in the deposition where it says that” can only lead to two conclusions: you play fast and loose with the facts or you just don’t know your case. Either one is at best simply embarrassing or at worst a condemnation of your credibility. It would also be beneficial to have a deposition index prepared for easy and quick retrieval of the wanted information.

While statutes, case law and the Rules of Civil Procedure and Rules of Evidence are not “facts” they can have just as much, and at times, more importance that the actual facts of the case. Should there be a “fact” that you are counting heavily upon to prevail in your anticipated trial but it will never see the light of day due to a statute, opinion or Rule, you will be wasting your time at mediation and embarrassing yourself in front of your client relying upon this “fact.” It should also go without saying that knowing the elements of each cause of action and each defense should be part of your preparation. The law matters.

Another aspect that falls into the category of being prepared is for you and your client to discuss in advance of the mediation what it is you wish to accomplish. And yes, this applies to both sides. While it goes without saying that the goal is to settle the case, that is too broad as it provides no guidance as to how to accomplish the goal. From the Plaintiff’s side, discuss with your client your realistic evaluation of the value of the case. I don’t recommend shocking them with making an opening demand for $1 Million and then settling for $50,000 unless you have discussed that the opening demand and pretty much all of the following demands are not the value of the case and just part of the dance. (Which leads to a future topic regarding why make outrageous demands that everyone knows will be abandoned.) On the Defendant’s side, if the attorney and the adjuster haven’t discussed the value of the case and the authority, then it makes it difficult to provide advice and guidance as to how offers should be made.

Most folks do not like surprises. This likely applies to you and your client. Therefore, advise your client what their role in the mediation will be and how much of their day the mediation might require. If you want your client to speak during the opening statement, let them know and discuss/rehearse what they will say. For the most part, my experience has been that it is rare for a client to speak. But, there have been situations where the Plaintiff discussing the event or the impact on their life has been very powerful. This is especially true where the opposing attorney at the mediation was not the same one who took the deposition, and of course, the Defendant/adjuster has never met/heard from the Plaintiff at all. I have also had situations in which the Defendant has spoken that have been very powerful.  Regardless, I do not suggest that the client just start talking without some guidance and I, like I believe most mediators, do offer the parties an opportunity to speak during the opening statement. While it has been rare, there has been the occasion when a party just starts talking without any guidance/foresight from their attorney. It was cringeworthy.

Every mediation seems to have a personality of its own, thus, the mediation could be concluded before lunch time or it could go into the night. But you never know which it will be. Let your client know so that they can plan accordingly. If it’s their first time through the process, and for most parties it will be their first time, let them know about the format - opening statements followed by breakout sessions - and let them know that the mediator is actually working on the case even when not in the room with them.

Obviously, every case is different and thus the preparation for each mediation will vary. You have to make the determination as to how much preparation is required. However, if you cover the above it will not only assist with a more productive and efficient mediation, but will go far towards earning that scouting badge we all strive for - a settled case!