Maybe I am biased because I mediate, but I would argue that mediation is a critical stage in the litigation process. It is so critical that some jurisdictions won’t let you try your case until the parties have been to mediation. In other jurisdictions it might as well be a local rule because mediation is so often ordered prior to trial.
If you have mediated with me, you have likely heard me say that mediation is one of the best days in the case. Why? Because everyone is at the mediation for the same reason (hopefully); and, that is to get the case settled. A successful mediation removes the uncertainty of a jury verdict. The parties may be able to resolve what would otherwise be a two- or three-day jury trial, or longer, in only a few hours. If mediation is one of the critical stages of the case, shouldn’t it be treated as such?
There are few things that come to mind when I think about the mediation musts. Prepare and submit a mediation statement that addresses the issues that you want to address, and that you anticipate the other side may address, at the mediation. The length of the mediation statement is not important. The content is. Are there liability issues? Are there causation issues? Are there comparative fault issues among defendants? The list goes on. Go ahead and bring it up. Do not pretend an issue does not exist if it does. If it is important, the other side will bring it up. Why not go ahead and address the issue early on to prepare the mediator?
Timely submit your mediation statement. When mediation starts at 9:00 am, submitting the mediation statement at 8:00 am the same day is a little late. Give your mediator time to read and re-read when necessary. The mediator wants to be as prepared as possible when the mediation begins and to be able to have an informed and educated discussion about the case and the issues.
On the plaintiff’s side, I believe face-to-face communication between the mediator and the plaintiff is important. I think Zoom is fine. I have been involved in mediations where the plaintiff attends by phone. I know there may be the rare occasion when this is inevitable. But, remember, this is a critical stage of the process. In all likelihood, the plaintiff’s deposition was not taken by phone. The plaintiff is not going to be permitted to attend by phone, or even Zoom, if the case goes to trial. The plaintiff needs face time with the mediator during the mediation. The plaintiff needs to be in a location where there are no distractions and the plaintiff can give full attention to the mediation. This allows for more effective communication. On the defense side, oftentimes claims adjusters do attend the mediation. When they do not, the adjuster, or someone with the company, should be accessible when the defense attorney needs to make a call.
Be willing to keep an open mind. I have never participated in a jury trial that went perfect. I’ve never participated in a jury trial where I didn’t have some concern the jury was going to get hung up on a particular issue that may hurt my case. This is because juries are unpredictable. Most cases are not bulletproof and there are issues that may hurt your case. While opposing counsel may think an issue raised during mediation is really a non-issue, I can assure you that if there is any basis for the position, it’s not the last time you are going to hear about it if the case does not settle. Just answer this question: Can you guarantee your client that the jury is not going to pay attention to _____ [insert issue]? If so, I suppose you have nothing to worry about. For the rest of us, the issue raised may be a factor to consider when negotiating and attempting to resolve your case at mediation.
I am sure there are many, many other “mediation musts.” These are a few important ones that I think all counsel attending need to keep in mind.
Tommy Santel is a co-founding partner of Santel | Garner. Tommy is a former government prosecutor. He is a Tennessee Supreme Court Rule 31 General Civil Mediator. Tommy’s practice areas include criminal defense and civil litigation.
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