Mediation can be a wonderful tool to help parties resolve their claims without the risk, expense, and energy that is required to prosecute and/or defend a case at a full-blown trial.
Mediation is a process where each side agrees to use a neutral third party who is called a “mediator”. The parties agree on a date, time and location as well as who the mediator will be. Sometimes mediation is ordered by the court and sometimes it is voluntarily agreed to by the parties. I meet with my clients for at least one hour before any mediation to go over the specific facts and issues of their case. With some complex cases, the mediation meeting may even be longer. Once we arrive at the mediation, the mediator will introduce himself to all of the parties and make sure that everyone who is attending the mediation knows who all the other people attending are and what their role is in the case.
I have attended some mediations where some people did not want to identify themselves or the parties that they are representing. This occasionally happens when we have an umbrella or an excess insurance policy that may be called in to pay the damages if the case is not resolved at mediation, and we obtain an excess verdict at trial. However, in most instances, everyone readily discloses why they are there and what interest they have in the case.
The mediator will pass around a document in which every person attending the mediation will sign agreeing to keep the discussions and negotiations that take place at the mediation confidential. Mediations are confidential. What this means is that each side can for the purpose of trying to settle the case, agree or admit to things that they may not agree or admit at trial. And because mediation is confidential, each side can relax and not worry about saying something that will be used against them at trial.
For example, the defense may say they are not contesting fault at mediation, but they may fight fault at trial. Or they may offer a settlement figure, or you may make a settlement offer, and if the case is not settled, neither side can suggest to the judge or jury that at mediation one side was willing to settle the case for a certain amount.
When I am selecting a mediator, I look for an experienced lawyer who has handled this type of case in the past.. I have found that former trial lawyers and judges are excellent mediators because they have a good grasp of the issues that will be presented at mediation, as well as a good understanding of the costs and risks associated with litigation.
Most mediators in Florida are certified by the Florida Bar. The mediator’s role at the mediation is to help both sides focus on the issues and help the parties reach an agreement. They try to reduce the negative feelings and points of controversy between the parties. They will suggest that the parties should openly discuss the issues in their case in such a way that a resolution may be reached. They will also convey the RISK of having a jury of strangers and a judge making a decision that will affect all of the parties if a settlement is not reached. It is important to remember that a mediator is not permitted to give legal advice, nor do they rule on or make any decisions for the parties.
Mediations have a pretty high success rate. In my experience, about half of the mediations result in a full or partial settlement of the case. However, I have found that some insurance companies have started using mediation as a tool to try and drive a wedge between the plaintiff’s lawyer and his client. They do this by making ridiculously low offers to the plaintiffs. Prior to going to the mediation, some lawyers will suggest to their client that mediation will be a positive experience in which the insurance company will come in good faith and offer reasonable amounts of money to settle the case. So when that doesn’t happen, the client begins to doubt their attorney’s skill. This is a cheap trick that insurance companies are using to create friction between an attorney and his client.
However, the insurance companies do not use this tactic with aggressive trial lawyers that they know have the skill, experience and resources to go all the way to trial. So attorneys, who may not be prepared to go to trial, will, unfortunately, cave under this insurance tactic and pressure their client to settle the case for less than it is worth, and take the low offer made by the insurance company.
Once all parties arrive at the mediation, and the mediator has introduced everyone and everyone has signed a confidentiality agreement, the mediator usually turns to the plaintiff’s lawyer and asks that he/she make their opening statement. In some cases, the opening statement can be as short as two or three minutes. In other cases, it can be as long as two or three hours with exhibits such as medical records, video clips of depositions, photographs and charts.
The plaintiff is trying to help the mediator, as well as the insurance claims adjustor and the defense attorney, understand what a jury will likely see in the event the matter is not resolved at mediation. After the plaintiff’s lawyer has made his opening statement, the mediator will then allow the defense attorney to present their side of the case. Typically, the defense attorney will address my client directly and say something like
“This is my only opportunity to speak to you, and I have a job to do and I’m going to say things that you won’t like.
you need to listen to what I’m about to say because if we are unable to resolve this case today, you will be facing a jury who will hear the same type of information and potentially rule against you. ”
Then the defense attorney will go through their list of why they have evaluated your claim for a very low settlement figure. I always suggest to my clients that they listen carefully, and keep a poker face and not react to the defense lawyers comments. In other words, do not show or express emotion or make faces while the defense attorney is talking. If you do react, they may perceive that you are scared to go to trial and might take a low settlement offer, or that you are angry, and at trial, you won’t make a good witness.