Early Mediation: A Litigator’s Viewpoint

Due to the backlog in the courts, more judges are now requiring parties to attend early mediation, in hopes of early resolution prior to discovery, dispositive motions, or trial. Mediation can be a boon or a burden, or somewhere in between. For purposes of this article, the term mediation is used interchangeably with settlement conference since the primary differences are cost, and selection of a mediator from the court’s panel or private companies such as JAMS or ADR versus assignment to a magistrate or other judge, but the process itself and the pros/cons are nearly identical.

Managing Expectations

In some cases, the case is unlikely to settle due to huge disparities in the parties’ positions (often because of unrealistic valuation or expectations), lack of information regarding causation, damages, or other critical elements, or a policy decision by an entity. Nevertheless, the courts may require that this step be completed before litigation. In this situation, it is best to let the court know (in a pleading or in the confidential settlement conference statement) about the anticipated roadblocks to settlement. This will result in either cancellation or postponement of the mediation or, at a minimum, a mediator that has realistic expectations and is not upset that “the time has been wasted.”

It also may be useful to signal to opposing counsel (or a pro se plaintiff) some discouraging information about your valuation – e.g., that the case is valued at nuisance value, that only a waiver of costs will be offered, or that it will not be settled for policy reasons (such as a prisoner assaulting an officer and then falsely claiming excessive force occurred during the restraint process).

At best, this may result in plaintiff’s re-evaluation of the case and lowering of their demand; at worst, it will help to lower the plaintiff’s expectations about settlement.

Benefits of Mediation

One benefit of mediation is obviously settlement of the case, resulting in termination of the lawsuit. Settlement is typically global, resolving all claims against all parties in the case, but it can be used to obtain the dismissal of one defendant or (less commonly) one claim. In some cases, the parties negotiate to have one or several individual defendants dismissed as part of the deal, with the formal settlement done between the plaintiff(s) and the entity. It is useful to think “outside the box,” for example by offering non-monetary items (such as a book or radio) or actions (such as provision of a medical evaluation or procedure), where appropriate. Private entities can include provisions such as confidentiality and non-disparagement; however, public entities cannot make the terms secret.

Even if settlement is unlikely or unwanted, there are some potential benefits to mediation. It can be used to gain information about the other party’s evidence, witnesses, and theories. If a judge is involved, particularly with the trial judge acting as settlement officer if the parties have waived any conflict with this role, it can be used to pre-influence the judge about the strengths of your case and the weaknesses with the plaintiff’s case. Mediation can also be used to “feel out” different theories or themes of the case, test various arguments and defenses, obtain (theoretically) neutral feedback about the strengths and weaknesses of your position, and receive input about the likelihood of prevailing at trial.

Potential Strategies

Mediators will often ask how much authority you have, and tell you that anything you say is confidential and will not be shared with the opposing counsel and/or party. However, while they do not breach confidentiality, it seems that if you tell a judge the actual amount of authority, cases often end up settling for this amount and not a penny less. Full disclosure works best in cases where valuation is at nuisance level, a waiver of costs, or when the entity decides for policy reasons not to settle the case. (In other words, when you would tell the other side your position without hesitation). In these cases, there is little reason to keep the end goal confidential, except that the specific amount of authority should not be shared if you want to settle for less than your full authority. If expediting the process is your primary goal, then sharing details works well. If saving money is the goal, then keep your cards close to your vest and disclose specific amounts only as they are ready to be shared with the other side, or in generalities such as “nuisance value.” If you have a video of the incident supporting your position, or other strong evidence such as a video deposition where the plaintiff or a key witness presents poorly, bring it to the mediation or submit it with your mediation brief. This will be a good starting point for the mediator to lean on the opposing party.

It is important in some cases to choose a strong mediator, particularly if you feel you have a defensible case, a reasonable valuation, and the opposing party and/or counsel have overinflated their valuation of their case. In these cases, most of the work will need to be done in the room with the opposing party and/or counsel, assuming your assessment is correct. In cases where the parties are not so far apart, choosing a mediator recommended by the other side is often appropriate because they will value the mediator’s opinion and listen to him or her. In contrast, if you recommend a mediator due to their past background as a defense attorney, or other reasons that make the mediator potentially partial to your position, the opposing side will be suspicious of their arguments and may not take them into account in adjusting their valuation.

Bring a draft settlement agreement (with only the amount and payees to be filled in) to the mediation. This will ensure that, if a template form or court reporter are not available, all parties can sign off on the essential terms of the settlement. A signed settlement agreement, even if preliminary in format, is enforceable by the court. If you have a handshake agreement, or even a written agreement agreed to by the lawyers but which is not signed by the individual parties, it will not be enforceable in court.

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