By: Guy O. Kornblum, Esq.*
Let’s take a break from talking about trial practice itself and turn to mediations since so many cases are resolved by this process. The topic here is how we can be more effective in mediation so that the chances of settlement and a successful day are high. There are six thoughts that should improve those chances significantly.
In my book on negotiations, I stress looking for the plateau. It is defined as “resting places at which the parties—independent of one another—must assess how the case is progressing, what needs to be done to ready the case for resolution by negotiation or trial, and what risks and expenses are posed by proceeding further in the litigation process.”1 The point is that timing is critical. In addition, from a plaintiff’s perspective, you cannot languish. You have an obligation to your client (and yourself and your firm) to move the case along.
Your litigation plan should consider what you need to evaluate the case and posture it in an effort to resolve it short of trial. This has three phases: a) the selection of key witnesses to establish liability and damages; b) the selection, preparation and evaluation of experts who are engaged to provide their views on any liability or damages issues; and c) the evaluation of the defense’s response to any efforts to resolve. This includes an evaluation of the collection process, i.e., is there insurance to cover the claim against the defendant? If there are insufficient limits, what are the prospects of recovery against the insured? Always keep in mind the three legs of the “litigation stool”: liability, damages and collection.
A critical factor in this process is assessing your client’s attitude towards resolution. What are your client’s needs and how can they be best served? How is a settlement going to help the client heal, be more comfortable, or be compensated for any injury and economic loss? All this needs to be considered in determining when and how to try to resolve through mediation.
Most clients that I have represented want to resolve a case short of trial. And this makes sense for all the reasons we know: to have funds to help the healing process and to provide for additional needs that may not be readily available because of a lack of financial resources without a resolution.
So, all this needs to be assessed in determining whether the client is ready to participate in the mediation process. One point to remember here: in assessing this, it is critical to know IF the client understands this process, and further understands that a successful mediation needs complete closure to the matter with no further prospect of receiving compensation.
Again, my experience tells me that once the process is fully explained to the client, that client will be willing to participate in the process. But again, it must be carefully and fully explained so that you are assured your client knows how this all works.
Rule #1 might be: never go to a mediation without a pre-mediation conference with the mediator to review the case. Give the mediator some insights to your client and the case, and get the mediator’s thoughts on how to proceed.
In some cases (and Zoom is a big asset here), I have had the client and those directly involved meet in a brief introductory session just so the mediator knows who the client is before the mediation and has the opportunity for a brief exchange with your client. This allows the mediator to make an assessment of who is involved.
I seldom go to mediation without engaging in this process. And I also leave it with the mediator to let us know if more is needed, so the mediator is prepared to “dive in” on the day of mediation.
It is our job to line up the witnesses, evidence, facts and law so that we are prepared to mediate and try to resolve the case. This means providing the mediator and the opposing side, and their representatives, with evidence to support your client’s case. In a mediation statement, text is not enough. Exhibits, exhibits, exhibits … they are the key to resolution. These exhibits should be in the form of admissible evidence to support your client’s case. I even prepare videos of key witness testimony, either from video transcripts of depositions, or specially prepared videos of experts or other witnesses who will support the client’s claims of injury.
Also in the Zoom era, I have asked experts to appear at the mediation via this virtual process and provide their views of the case. If this is an alternative, I first make sure the mediator believes this will be helpful, and also make sure the witness is positive about this process.
This is just another way of discussing what I have said in number 4. Have your experts provided complete reports or testimony? Have you confirmed the liability facts through depositions or other ways to prove that aspect of the case? Have you fully developed – from a practical standpoint – what you need to convince the other side, and the mediator, of the merits of my client’s case?
I have touched on this already in discussing the client’s needs. Resolution not only needs closure, but it can also mean – and often does mean – that the client is relieved and now has the resources to get on with life, which has a positive emotional impact on clients.
In looking at this process, I am reminded of a Biblical quotation from the Letter of Paul to Philemon (New Testament, Philemon 1-21):
“Or what King, going out to wage a war against another King, will not sit down first and consider whether he is able with ten thousand to oppose the one who comes against him with twenty thousand? If he cannot, then, while the other is still far away, he sends a delegation and asks for the terms of peace.”
*Mr. Kornblum is the principal in Guy Kornblum & Associates, a San Francisco based law firm that specializes in representing clients in mediations, trials, arbitrations and appeals. Mr. Kornblum has had his own for firm for over 30 years. He is certified in Civil Trial Advocacy by the National Board of Trial Advocacy and is a Charter Fellow, Litigation Counsel of America Trial Lawyer Honorary; a Life Member, Multi-Million Dollar Advocates Forum; a Platinum Member, The Verdict Club, which recognizes “the superior accomplishments of its professionals as measured by the achievement of significant settlements and verdicts;” and a The Legend Society Top Lawyer. Mr. Kornblum has taught law at local law schools and has co-authored three legal texts, the latest, “Negotiating and Settling Tort Cases,” 2 Volumes, published by the American Association for Justice and Thomson West Publishing Company.
