A Fresh Set of Eyes: Getting the Most Out of Your Mediator

Ted Sherwood Ted Sherwood
October 23, 2018

My wife and I recently traveled to Ireland. While in Dublin we took a walking tour of some of the historical sites lead by our loquacious guide “Dougie”. One of the must-see places we visited included Trinity College where the Book of Kells is maintained. In the same room is an original Irish Proclamation of Independence, stemming from the Irish Rising of 1916 announcing Ireland’s independence from England.

Our guide explained the significance of the document while we peered at it under glass. Dougie noted that the document contained a misspelling, a backward “e”, but in all the times he had looked at the document he had never been able to find it. My wife, a commercial title lawyer who constantly scrutinizes technical documents, immediately pointed out the misspelling. Hence, the benefit of a fresh set of eyes.

The best mediators usually share a common background of also being experienced and talented trial lawyers. Often these mediators have 30+ years of experience handling and trying cases all over the state. In addition, these mediators have represented hundreds of parties at mediation as an advocate, as well as serving as the neutral mediator in similar cases. How can the parties best utilize a fresh set of eyes to the benefit of their clients?

  1. Don’t hide the client. After reviewing the mediation statements from the parties, I always start a list of the strengths and weaknesses for each party to the case. This list serves as a springboard for conversation with the parties and their attorneys during the evaluative phase of the mediation and often leads to a lively discussion. While every list is specific to the case at hand there are usually some common elements. It is also during this process that I usually talk directly with the parties to form an impression about how they might present at trial. Some lawyers will intervene and answer for their client which I believe is a mistake. Most of the time the information I gather can help both sides better evaluate their position at trial. Sometimes, if the mediation occurs before suit has been filed, or is early in the discovery process, the other side has no idea about the background of the plaintiff bringing the case, or the undisclosed experts the defendant has hired to support their defenses.

  2. Encourage the mediator to explain the significance of technical aspects of the law or facts. Frequently, a lawsuit is a first-time event for a plaintiff or a defendant. A plaintiff may not understand issues like “paid versus incurred” or caps on non-economic damages. A doctor who has never been sued before may not appreciate how certain facts will be perceived by a jury that has no medical training. A party’s attorney may have only emphasized the strengths of the client’s case and has not had a candid discussion of the weaknesses. Or, even if they have had that discussion, it never hurts to have a third-party neutral, the mediator, reinforce the conversation they have had with the client. The best lawyers are not afraid to invite a fresh set of eyes to weigh in on potential landmines in their case, especially knowing that the mediator is the only one who has been in the other room.

  3. Invite the mediator to sum up. When cases do not settle at mediation it’s usually because one side or the other has an unreasonable evaluation of their case. Sometimes an injured plaintiff is completely focused on the damages they have suffered and completely ignore the risk that they could lose or that a jury might reduce their award by assigning some percentage of blame, called contributory negligence, to the plaintiff. Other times a plaintiff might not appreciate how negative aspects in their background or inconsistencies in their testimony will be perceived by a jury. Conversely, a defendant may not appreciate how sympathetic a seriously injured plaintiff might appear to a jury or how expensive and time-consuming it can be to get a case resolution at trial. In some cases, a defendant may have to pay the other sides’ attorneys fees which can dwarf the actual damages award. In these cases, it does not hurt to invite the mediator to sum up or explain why resolution at this stage of the litigation takes out the risk of an adverse result at trial.

  4. Use the mediator to follow up if the case does not settle at mediation. According to one source, over 95% of civil cases are settled before trial. However, not all of those cases settle at the first mediation session. While some cases require a second or even third mediation session, I have settled many cases in the weeks and months following the first mediation session by working the phones and using email. When a mediation is unsuccessful, the first reaction of the parties is to put their ears back and return to full-on litigation mode. But in cases where there appears to be some hope of an intersection between what a plaintiff wants and what a defendant will pay, I always try to follow up in a few weeks or 30 days. That way the follow up is part of my routine, as opposed to one party or the other showing weakness. Lawyers and their clients should use their mediator to follow and test new levels of negotiation.

Using these techniques will help maximize your mediator as a resource.