Preparing to Fail at Mediation May Be the Best Way to Succeed

Every good attorney knows the best way to prepare for a mediation. Marshal the facts. Master the law. Hone your presentation. Employ compelling visual aids. Anticipate the opposition and craft effective counters. But one rarely considered technique may produce the biggest benefit of all, namely, thinking long and hard about what happens if you don’t settle.

Not settling means going to trial. But recognizing that obvious fact provides no benefit in and of itself. The trick is to envision, with specificity, what is going to happen at trial. For example:

Which witnesses will each side produce? What testimony will they provide? Which aspects of that testimony will support, or detract from the client’s position? What documents will be adduced? What evidentiary fights will emerge? How will the judge decide these issues? Will either side file motions during trial? How will the court decide these motions? Will any of the evidence, whether verbal or in documents, tip the scales strongly in favor of or against each party? What are the chances of a plaintiff’s or defendant’s verdict? What are the reasonable verdict ranges?

Considering future trial issues with that level of precision hones a lens through which one can view the mediation with a gimlet eye. When one thoughtfully and objectively anticipates success or failure of every aspect of a future trial, one understands the arguments to advance, the appeals to make and the buttons to push at a mediation. Further, and most importantly, a detached and rational analysis of future trial battles informs the ultimate goals of the mediation for the party, as well as how hard it should advocate for each such goal.

To assist you in this process, it is invaluable to retain a mediator with the experience necessary to assist the parties in predicting how issues will work out at trial. Such a mediator has tried cases personally while a lawyer, presided over jury cases and decided courtside cases as a judge, and has had exposure to a broad range of legal issues. When mediating an arcane subject such as insurance coverage, it is vital to employ a mediator who has reviewed and understands policy language and how the disparate portions of a policy interact.

Although it sounds oxymoronic, preparing for failure at a mediation will often yield the best recipe for success.