Mediation Meanderings

I don’t like mediations.   Mediators ask me to take back this sentiment.  But I’m not repentant.  It’s not that I don’t like the mediators.  Some of them I absolutely adore.  But I dislike the process.  In an ideal world I would say – hey we will accept X amount.  The insurance company would say – naw, we won’t pay that but we will pay Y amount.  And then we would give a thumbs up or down without further dickering.  But that is not how it works.  It’s all about the dickering.

Regardless of my crabby attitude, mediations are a necessary part of life.   Most courts require it and most insurance companies won’t negotiate without it.    Here is my version of the good, the bad and the ugly.

Picking the mediator can be the most important step.  I used to ask the insurance co.  who they wanted to use and would go with whomever they designated.  I figured it was more important the mediator was someone they trusted so that when I squeezed tight and the mediator said – this is what it will take – they would have enough trust to listen.  If the mediator was someone only I liked, the insurance co. would be distrustful and nothing would get done.  I’ve changed my thoughts on this over time because I can actually be the more difficult one.  There are some mediators whom I’ve never had success with, don’t have confidence in, and so it would be a Waste Of Time and money to agree to them.

The best mediators in general have been around for a long time.  They grow better with age.  They are used to managing major egos and idiosyncrasies.  They have all sorts of ways to move people toward resolution.  They make solid recommendations, don’t make promises they can’t keep, have a good pulse on where people are coming from, communicate well, and know how to broker a deal.  Many of them are deeply touched by the stories they hear and the people they help.  Then there are the others.  Here are some weak mediator traits:

  1. The Messenger.  The mediator simply carries numbers back and forth.  The Messenger says something like this:  Here’s what the other side  has offered…what would you like to do.  And then leaves and goes to the other room and says the same thing.  We’re paying that mediator way too much money for them to be doing this.  It is a Waste Of Time.  Waste Of Time is the worst thing in mediation – it gets no one anywhere.
  2. The Dictator.  There are a few mediators who have their “own special way” of doing things.  You have to abide by their strict rules, otherwise the process won’t work.  We’re not simply talking about taking advice.  We’re talking about an entire way of conducting the mediation.  Some of these mediators actually get the job done.  But me personally, I can’t stand the dictator approach.
  3. The Guesser.  There comes a point in mediation when the mediator has to know how much one side will come down and how much the other will come up.  Neither side will usually come out and say what their magic number is.  And even if they do, the mediator has to figure out if that is really it.  If the mediator says – if you will go to here, I know they will go to here – and they don’t.  That’s a problem.  You can’t trust the mediator.  They made a promise based on a guess that was wrong.  They broke their promise.

All personal injury attorneys are not equal in mediation.   Insurance companies settle cases based upon a risk analysis.  The risk they’re looking at is what might a jury do if they believe in the plaintiff.  How big might a verdict be.    They really don’t care how much it will cost to take the case to trial – that expense is built into their business model.  They don’t really care about the feelings of the plaintiff.  It is a bottom line decision.  The unfair but true reality is that two different attorneys could be negotiating on the same case and the insurance company would offer different sums of money.  They are looking at  what risk the attorney presents.  If the attorney does not ever try cases, the insurance company knows they can lowball the offer and the attorney will always accept rather than go to court.  If the attorney tries plenty of cases, this changes the equation and the risk upwards.

Here are some random strategies and thoughts  about mediation.

  • Make sure the insurance company has brought their person with money authority to the mediation (or have them on the phone)
  • Have your client brings reading material and let them leave the room to take frequent breaks
  • Tell your client not to pay any attention to the monopoly money nature of negotiations until you get the other side to the “bite mark”
  • Prepare your client in advance, make sure they see the other side’s materials so expectations are realistic
  • If your client is too seriously injured to attend or lives far away, use skype
  • Always display unity between client and attorney when meeting with the mediator
  • Do not talk disrespectfully or unprofessionally about your client behind their back  to the mediator
  • Joint sessions are not needed except in certain cases
  • If you do a joint session, do not make a presentation that will further polarize/antagonize the other side
  • Ask the mediator to make their recommendation for the next move, then feel free to use or ignore it
  • Know how much money needs to be paid back to health insurers, or the government or L&I liens
  • If you can avoid it, don’t tell the other side what those liens are
  • L&I will most likely want to attend so make sure to invite them
  • Don’t let the mediator tell your client horror stories meant only to scare
  • During the first round, maybe the second, go ahead and talk about the facts.  But after that get to the business of negotiation
  • Talk about the facts for longer if you think the case won’t settle to get a better read on what the other side will do in trial
  • Bring key documents in case the mediation cannot proceed without arguing the facts
  • Be prepared for waste of time and deal with it.
  • Don’t ever think that you can offer the fair and right number and it will be accepted at face value
  • The whole thing about adding up the offer and counter and dividing them in half to see where you might get to – is just a big guessing exercise
  • Remember each move you make sends a signal
  • Don’t move too much hoping they will match
  • If they say last and final offer, no more money.  Make them prove it.  Don’t believe them.  Make them make a call.  Don’t believe them.
  • If they offer a bracket, almost never accept it.  Counter with a different one.  You can negotiate brackets.  Or disregard them.
  • Avoid the candy dishes – the highs, the lows, the pounds!
  • If the other side brings an annuity broker, figure out if you want to even see a proposal but the best thing is to just negotiate for present dollars
  • Have a different annuity broker available by phone for a second opinion if it comes to that
  • Put on poker face
  • Be willing to walk out
  • When the process is ended and there’s nothing left to be gained, walk out
  • If you don’t walk out when you should, you send a signal
  • Mediations can extend beyond the day of mediation – in fact they often do.
  • If the case settles, don’t leave until a basic agreement has been signed by all sides
  • Don’t be embarrassed to ask the other side to pay your half of the mediation fee as part of the settlement  particularly in a smaller case where every dollar counts