Trial Magazine

When mediating a case, there can be enormous pressure to settle. Here are some issues to consider before a mediation begins.

Prepare your client. Set reasonable expectations. Prior to mediation, have a lengthy discussion with your client about a reasonable settlement range and also what is likely to occur during mediation. If your client is thoroughly prepared and has a realistic mindset, it will be much easier to walk away from an unjust offer.

Pre-mediation offers. Asking for a settlement offer before mediation will almost certainly give you a feel for how serious the defendant and its insurance company are about resolving the case. When catastrophic or very serious injuries are involved, I almost always require a ­pre-mediation offer. If the defendant isn’t willing to make one, that often indicates that it is not going to offer a fair settlement. Requiring a ­pre-mediation­ offer can also ensure that the defendant doesn’t show up to the mediation with a low settlement authorization from its insurer.

Do I need to give a presentation? Mediation presentations can be powerful. Be aware, however, that defense lawyers often seek to acquire non-discoverable information about your case through mediation. If the situation does not warrant a presentation, especially when liability is ­straightforward, consider not doing one or giving a limited presentation. For example, I don’t give an opening at mediation unless there is a specific reason to do so.

Don’t be afraid to walk out. Many first attempts at mediation are unsuccessful. Defendants and their insurers need to know you are serious about going to trial before offering a fair settlement. Walking out of a mediation without settling does not mean you will not successfully settle later. Recently, I settled a case during a second mediation that occurred less than six months after the first attempt.

Representing clients at mediation can be challenging, but these basic guidelines are a good place to start.

Zachary M. Mandell is an attorney at Mandell Schwartz & Boisclair in Providence, R.I. He can be reached at zmandell@msb-atty.com.