It’s a familiar scenario: As the case moves toward the mediation stage, the two sides start staking out positions with an eye toward compromise. The plaintiffs make a big ask with the expectation of coming down. The defense offers a low number with the expectation of coming up. Before and through the mediation, those numbers become dynamic: A drop on one side is answered by a raise on the other, until the numbers end up magically meeting in the middle. What’s missing in all of this? Often, the missing ingredients are the facts of the case and a role for the actual strengths and weaknesses of each side’s position.
That scenario might be a stereotype, but it’s often a fear and sometimes a reality. It can be frustrating to the attorneys who’ve worked up a case, and especially to the clients who’ve lived it, to feel the need to bring it to a close through a process that says more about the math than about the merits. A recent article, “A Meditation on Mediation,” in New Jersey Law Journal, discusses the longstanding tension on whether mediation ought to be a facilitative process that empowers the parties, or an evaluative process directed by a neutral. Of course, there’s the possibility that it can be both: a facilitative process, but one based on some source of grounded evaluation of the case, whether that evaluation comes from the mediator or from elsewhere. Ultimately, the merits of the case should matter and it should not be just a mathematical game of making reciprocal concessions in order to reach a numerical average. In this post, I’ll share some ways to keep it substantive while still focusing on resolution.
Given the small portion of cases that are actually resolved in a courtroom, much litigation prep is actually prep for mediation or some other form of resolution. That should be true for the substantive work on the case as well. In addition to setting the stage for a good closing argument, your development of your case themes and strategic messages should also prepare the grounds for an effective negotiated resolution. Here are a few reminders for keeping that resolution based on the merits of the case and not just on negotiated numbers.
1. Start With a Grounded Sense of Your Case, Warts and All
The strongest position is to be fully and fairly informed on how your case stands in relation to the other side’s case. Being clear-eyed about both your strengths and weaknesses can mean setting aside (for a moment) “the advocate’s lens” when looking at your case. Instead of using your analytic and persuasive skills to put your case in the best possible light, use your best sources (venue analysis, past cases, community surveys, focus groups and mock trials) in order to see your case the way your expected audience will likely see it.
2. Be Honest About Weaknesses (Avoid the Temptation to Bluff)
When a courtroom lawyer’s persona is given free rein in a negotiation room, the results aren’t necessarily good. The same confident and unyielding demeanor that might gain the agreement of a jury won’t be very credible to the neutral or to the other side. Being honest about your weaknesses — while still being clear in putting those weaknesses into perspective — can be the most credible option. If you show that you understand the case from their perspective and still believe you have grounded way to resolve it favorably, you’ll be a stronger and more reliable partner in the case’s resolution.
3. Show (and Share) Your Work
Whenever advocates make representations to a mediator or to the other side, there’s a central question that goes to credibility: How do you know what you say you know? Being willing — not always, but often — to answer that question by sharing your work can give you a stronger position in a negotiated settlement. Granted, your own research is generally going to be confidential attorney work product, and that means that you don’t have to share it. But you may want to share it if it gives you a better position and keeps the focus on the substance of the case. Often, we’ve seen clients willing to say, “Yes, we’ve tested this in a mock trial, and here’s how we tested it…” That can include carefully sharing the work product. In a recent case, we also worked with both sides in conducting a mock trial together, so the parties could have a common reference point in surmounting the obstacles to settlement.
Of course, every case is going to be different and every collection of parties and counsel will present unique challenges. But I have long-noted that there is a common and deep frustration when, after spending months or years developing the substance of the case, the matter is resolved in a way that does not seem to sufficiently respect that substance. The bottom line is that it doesn’t have to be that way. Many to most cases can and should be resolved prior to trial, but it should be based on merits and not just math.
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Image credit: Shutterstock, used under license
