As trial attorneys we prepare every case as though it is going to trial, but we know that 95% of cases settle before trial,[i] and in many states, including Texas, mediation will be mandated. So, the question is: why are we not preparing for mediation with the same level of focused strategy we use in trial?  And, in case you think that most lawyers are already doing so, let me set the stage:

It is Mediation Day

It is mediation day. Defense lawyers, plaintiffs’ lawyers, mediators, carriers, and clients have rolled out of bed and made their way to a desk, kitchen table, or couch to open the Zoom screen on their computer or mobile device. Everyone present has suited halfway up and may or may not be wearing pants. The mediator appears on your screen and asks you to click a button. You are teleported to a joint session where the parties arrive on the screen looking a bit like a dysfunctional Brady Bunch. Pleasantries are exchanged, but little is heard, because on Zoom you can only hear one person speaking at a time and you cannot see who has the stage. Someone may decide to share their screen which gives you the opportunity to multitask. You check your email and consider ordering Door Dash. You cannot tell if anyone is looking you in the eye. The plaintiff is attending on his cell phone and has not stopped moving, so it is impossible to look at him without risk of motion sickness. The PowerPoint presentation is over – time to rejoin the groups. The mediator is summoned with the click of a button, and he begins what we all hope is a very short mediation. The all-too-familiar chorus begins: “Dave, you are on mute.” “How about that mediator’s proposal?”

Nothing about that scenario feels like a focused strategy, and even if you did spend hours and hours preparing your presentation outlining the defense you will use at trial, no one heard you, Dave! You were on mute!

Time to Up Your Game!

Okay, I know that is not every mediation, but it is a lot of them. Even in venues where in person mediation is reasonable and safe, people are defaulting to Zoom mediation, probably because it is just easier. But I would argue the people who are defaulting to Zoom mediation are doing so because they are only thinking about mediation as a checklist item on the way to trial, instead of as a strategic opportunity to influence the outcome of the case. We can do better!

If you are reading this, you probably already know the Nuclear Verdicts® defense methods have proven to be incredibly powerful tools at trial. But have you thought about using them at mediation? If you are familiar with them, then you know that the strategies are not focused on convincing a jury to find zero liability or award zero dollars. Instead, the focus is on defusing juror anger to persuade the jury to find the reasonable solution. That sounds like something everyone should be doing at mediation, right? Yes! So, here is how:

Give a Number

Defense lawyers often shy away from using numbers at trial when they should be giving a number early and often to make use of the psychological benefits of primacy and recency.[ii] The “number” we are talking about is the dollar amount the defense lawyer thinks the jury should award, if any. At mediation, the “number “can mean many things: the number you give the carrier, the number you tell the mediator, the number you are signaling to the other side, or the real number you have not told anyone. While each of these numbers is important, we will focus here on the number the defense is offering to settle the case.

First and foremost, do not go to mediation until you know your numbers. Going to mediation without a complete understanding of the economic damages, outstanding liens, and financial obligations of the plaintiff is like going to play baseball without a glove. It can be done, but you will not be as effective (and it may hurt!).

Next, communicate with all parties early and often what you believe the economic damages numbers are. I suggest you begin discussing overall economic damage numbers in the opening. It is better to learn early if there is a dispute between parties about the economic damage numbers that will be presented to the jury.

Then, continue to use the established economic damages as an anchor for your offers. Offers that are not connected to the case in a meaningful way will be treated as meaningless – and do not forget this goes both ways! When you make an offer, explain what you believe the offer is connected to and ask the mediator to discuss with the plaintiff how the money would be spent. Conversely, when the plaintiff comes back with an unreasonable demand, ask the plaintiff to explain how their number is connected to the case. If their number is too high, a good mediator will be able to use this avenue to discuss that justice does not mean a lottery win.  By way of example: a plaintiff demands $50,000,000 in a case where the agreed economic damages that will be presented to the jury is only $100,000. Ask the plaintiff to explain why they think an award 500 times the economic damages is reasonable and see if you can get the plaintiff’s lawyer to explain how they are going to argue that it is. Even if it does not move the needle, this is a great tool to garner some insight into what the opposing attorney thinks are the highlights of her case.

Do not shy away from using actual numbers at mediation. Know your numbers, communicate them early and often, and anchor your offers to the facts of the case. This strategy will help your carrier and the plaintiffs evaluate their risk and allow the mediator to engage in conversations about what a reasonable settlement looks like.

Accept Responsibility

Beginning mediation with candor and reasonable acceptance of responsibility has a positive psychological impact on all parties, including the mediator. Remember: accepting responsibility does not mean accepting liability; it means accepting responsibility for something. At mediation, that “something” can simply be that your client accepts the fact that they should be in the room and admits that they are willing to pay some amount of money to reduce their risk of a Nuclear Verdict® to zero. This should not be shocking: if you showed up at mediation willing to make any offer over $0, this is automatically true!

Accepting responsibility immediately places the defendant in a per se reasonable position.  Another benefit of accepting responsibility? You invite the mediator to assess whether the plaintiff is owning their fair share of responsibility, too. Maybe the plaintiff has some comparative fault, or perhaps they did not mitigate damages as well as they could have. This simple question changes the blame conversation. You can use the mediator to ask specific questions: Is the plaintiff going to admit at trial they were not wearing a seatbelt? Is the plaintiff going to admit at trial they saw the broken curb on the way into the store? You may not get binding answers, but you will be forcing the conversation to be about the facts of the case, and you may pick up on some of opposing counsel’s trial strategy along the way.

Defendants and their counsel often undervalue the unique opportunity to speak to a plaintiff face to face and off the record in a mediation. Further, being prepared to accept responsibility for something (even or especially something the defendant is proud of!) is crucial in establishing credibility with the mediator. It capitalizes on the theme of reasonableness, which is of paramount importance when negotiating what a mediated resolution might be.

Personalize the Insured

Attorneys should consider having the insured or a corporate representative for the insured business present at mediation. The insured should say hello to the plaintiff and demonstrate their humanity through a caring interaction, if possible. This is likely the only opportunity to facilitate an interaction like this, and the psychological benefits of both parties seeing a real person on the other side of the lawsuit should not be undervalued. Sharing the personal story of the corporate defendant is a helpful strategy to contextualize for the mediator the people behind the business.

By the time mediation is occurring it is likely you have taken the plaintiff’s deposition. You know a lot of personal information about that person. Ask how their hobby is going, ask how their child is liking the 5^th grade, or ask about their dog. Whatever you learned, use it to build connection, and let your corporate representative use it. Establish there are humans on the other side of the table, not just dollars.

Discuss Damages

By mediation, key depositions will likely already have happened. Attorneys should know what is important to the plaintiff and what they feel they have lost as a result of the incident. Use the opening, the mediator, and a structure broker to show plaintiff how a specific offer can help them reach their goals. This can be a powerful tool to help a plaintiff understand what they are walking away from if they don’t accept an offer at mediation. This is the place for attorneys to be creative! Ask the structure broker for plans for kids to go to college and get a new car when they turn 16. Print out travel itineraries to show how many European vacations could be taken with the money offered. Look up real estate in the area and talk to them about the kind of home they could purchase for their family. Personalizing your offer to the plaintiff is extraordinarily effective as it allows the plaintiff to imagine life beyond the mediation day. Being able to offer someone hope for the future is worth its weight in gold.

Conclusion

For many, mediation is a steppingstone, an item on the checklist, or an opportunity to multitask while the mediator is in the other room. What a wasted chance! Instead, if your case is ready and you have a focused strategy, mediation can be a day to achieve justice, a day for an injured party to feel they have been heard, and a day for a carrier or client to recognize and eliminate risk. The Nuclear Verdicts® defense methods are not just for trial; they are a critical tool for mediation, too. Put simply: attorneys should be applying the methods – even, and especially, in mediation.

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Sources

[i] Jeffrey Johnson, J.D., Personal Injury Settlement Amounts Examples (2023 Guide), Forbes Advisor (Sept. 22, 2022), https://www.forbes.com/advisor/legal/personal-injury/personal-injury-settlement-amounts/#:~:text=It’s%20true%2C%20more%20than%2094,reach%20settlements%20at%20some%20stage.

[ii] Tyson, Robert, Nuclear Verdicts: Defending Justice for All (2020).