DEFENDING AT MEDIATION: Best Practices And What To Avoid
Varied mediation results can be linked to poor or ill-timed defense practices. In cases taken to mediation, the defense counsel has either helped or hindered the prospect of settlement. In an effort to avoid hindering the effects of mediation, Pacific ADR will list out best practices for defense attorneys regarding mediation.
The topics and questions mentioned below represent a partial sample of mediation-related issues or dynamics that defense counsel can influence for better or worse. In any scheduled mediation, it is important to think about the following topics, and ask these subsequent questions to ensure that the time allocated for mediation is utilized efficiently. Moreover, being able to honestly and thoroughly answer these questions will better prepare the defense for negotiations.
1.Mediation Length: Did we schedule enough time for the mediation? If in doubt, ask the mediator. He/She will do their best to advise.
2. Who Will / Must Attend the Mediation: Never misrepresent who will attend. Always strive to have the person or persons with settlement authority personally attend mediation. With online/ video based mediations, claims adjusters are more willing and able to attend mediation sessions.
3. Pre-mediation Communication with Opposing Counsel: Did both parties communicate with each other prior to mediation? Do you have credibility? Does opposing counsel have credibility with you?
4. Pre-mediation Conference Calls with the Mediator: Do you always, sometimes, or never schedule pre-mediation telephonic conference calls with the mediator? When you do, are the clients invited to participate? Oftentimes, the clients' participation in pre-mediation conference calls yield better results at mediation.
5. Lien/Subrogation Management: Prior to mediation, do you know the status and amount(s) of all liens / subrogation interests? Do you know whether these have been effectively managed by plaintiff’s counsel?
6. Insurance Coverage Issues: Have all coverage issues been timely disclosed to Your insured? Will the insured have personal counsel attending mediation? Have coverage issues been timely disclosed to Plaintiff’s counsel? Is a coverage claims representative, an indemnity claims representative, or both, controlling the negotiation?
7. Representations to the Mediator: Are you always candid with your communications to the mediator? Was everything of importance disclosed prior to mediation in mediation submissions and during the pre-mediation conference calls?
8. Written Mediation Submissions: Are yours clear and concise? Delivered on time? Ask the mediator what they would like to see (e.g. key deposition excerpts, significant court orders or copies of controlling case law). Are you willing to share mediation submissions with opposing counsel?
9. Multiple Representation: If opposing counsel represents two or more clients, make that they have fully complied with RPC 1.7 and 1.8.
10. Settlement Agreements: Did both parties bring a draft settlement agreement to mediation? Circulate potentially controversial provisions (e.g. confidentiality, non disparagement, non-competition, no tehire) to plaintiff’s counsel prior to mediation? The mediator should not be tasked with preparing the settlement agreement. Never leave the mediation without a signed CR2A agreement if the case has settled.
11. If No Settlement is Reached at Mediation: Will the mediator continue to work with the parties to reach settlement? Did the parties implement a follow-up plan?
The topics discussed above are recurring topics in most mediations. The neglect or mishandling of which may doom any mediation before it even begins. Experienced and knowledgeable mediators can provide useful assistance and help answering these questions prior to, and during mediation session, especially if they are alerted to these potential hindrances early on.
To inquire about Pacific ADR's mediation practices or to schedule a mediation with one of our Neutrals, contact us today at: