Conducted virtually or at your office
*** No "Administrative" Fees! ***
A 4-hour minimum is charged at the following rates:
2-party case: $250.00 per party, per hour
3-party case: $225.00 per party, per hour
4-party case: $200.00 per party, per hour
- Pre/post mediation work billed at an hourly rate
- Travel time outside metro Atlanta: $100.00 per hour
- If mediation is canceled within 14 days of the scheduled mediation, a fee of one hour will be charged to the parties at the hourly rate.
All participating parties expressly agree to be bound by this Mediation Agreement.
HOW TO CHOOSE A GOOD MEDIATOR
by Scott D. Delius
Most lawyers want someone from their background, but picking from ‘the other side’ can be smarter
How do litigating parties pick a mediator? Everyone has ideas about mediation strategy, but how does the selection of a mediator affect the outcome of the negotiations? The answer may surprise you.
Litigating parties often have a preconceived notion of who their mediator should be. The defense lawyer usually wants a mediator with a defense background, whereas the plaintiff’s attorney generally wants a mediator with experience representing plaintiffs. Opposing counsel sometimes refuse to use a particular mediator because of the kind of work that the mediator does in private practice. The implication, and it’s not really implied at all, is that the mediator is incapable of being neutral because of his or her practice area.
This has always seemed counterintuitive to me, even before I became a mediator. I suppose that there are indeed “neutrals” out there who in fact are not. Thankfully, I don’t know any of them. My favorite saying as a mediator is that I have but one allegiance, one party to whom I am faithful, and that is to “the settlement” itself. A mediator should not be concerned with impressing one side or another. That will come naturally if the case settles.
In any event, and for whatever reason, the conventional wisdom says that each side should strive to hire a mediator who does their kind of work. Supposedly having a fellow insurance defense lawyer as a mediator is going to help the defense negotiate a better deal and the assumption is that the mediator who represents plaintiffs will do the same for that side.
After successfully settling hundreds upon hundreds of cases as a mediator, I have a different perspective. I believe that lawyers should re-think the impulse to have “one of their own” act as mediator in every case. A closer look at the dynamics of a particular case may call for a completely different approach.
In my other life as a litigator, I often employ the “plaintiff’s expert” in my defense cases and vice versa in my plaintiff’s cases. I do that because I want a different perspective. I want my expert to identify both positive and negative issues, not just what they think I want to hear. I usually know what my strengths are, but I need my expert to also help me identify my weaknesses. An expert who only works for one “side” or the other may be lacking in that ability. That same philosophy may also be applied to mediators.
It doesn’t do a litigating party much good to have a mediator tell them what they want to hear. Praise isn’t always necessarily what’s best for our clients. Do you really want your mediator to tell you and your client that your case is rock solid, that you can’t lose and that you shouldn’t budge an inch? Maybe your client will appreciate it, but that probably isn’t going to help you settle your case.
Indeed, a good mediator asks the tough questions and points out the biggest risks to both parties. After all, that’s why you’ve come to the mediation table in the first place, to minimize your risk. How are you going to accomplish that if you don’t know what your risks are? I will submit that it’s a little too late once a jury lets you in on the secret.
If you’re the defense lawyer, there are some instances where you should strongly consider hiring a mediator who has the experience of litigating plaintiff’s cases. If the plaintiff has unreasonable expectations, there’s nothing more valuable than having a mediator who has the ability to look the plaintiff in the eye and tell him why his case is not worth what he thinks it is.
Mediators acquire that skill by having had the same heart-to-heart conversations with their own plaintiffs: clients. Credibility is everything to a plaintiff unversed in the law. It can be quite difficult to settle a case if the mediator is unable to make a “connection” with the plaintiff, especially where valuation is a sticking point.
Plaintiff’s attorneys should also consider hiring a mediator “from the other side.” If the plaintiff’s attorney believes the other side is undervaluing their case, an experienced insurance defense lawyer working as a mediator can be extremely effective when it comes to persuading an adjuster to offer more money. Insurance defense lawyers are skilled at advising adjusters on how to do their jobs. Plaintiff’s attorneys may have experience negotiating with adjusters, but that’s not what a good mediator does. An effective mediator speaks directly to the adjuster to help them do their job, which is to minimize the risk to their insureds.
It has happened to me countless times. I listen to each side’s presentation at mediation and I think of a question or see an issue that neither side has considered before. That’s because the parties often have tunnel vision. Litigators view and present the facts in the most favorite light for their client.
As someone who is new to the table, and who has represented both plaintiffs and insurance companies, I can see the entire case from all sides. I’m also able to have credible discussions with the plaintiff and the insurance adjuster because I’ve stood in their lawyers’ shoes many times before.
It is very important to choose the right mediator for the job. Litigating parties should take the time to step away from the case and objectively evaluate the obstacles to settlement.
Resist the instinct to insist on a mediator from “your side.” It may be that given the dynamics of your case, the opposite may in fact be needed, and hiring a mediator from “the other side” might actually be the key to getting your case settled.
THE BENEFITS OF TRUSTING YOUR MEDIATOR
by Scott D. Delius
Who exactly is the opposition in mediation? Should you reveal your trial strategies to the mediator? What about disclosing your settlement authority? Some concepts may seem obvious, others may not, but it is surprising how often mediating parties employ tactics that are unhelpful to their cause.
WHO IS THE OPPOSITION IN MEDIATION?
One of the main problems in mediations is attorneys that treat the mediator as the opposition instead of an ally. During a caucus, where the mediator meets privately with one side, some lawyers (and their clients) treat the mediator as the opposition. They see the mediator as a manifestation of the other side. Too often they focus on the unreasonableness of the demand or the offer.
Mediating parties should use the mediator as a conduit of information. A good mediator will give as much information to the other side as is ethically possible. Becoming angry with a mediator because the opposing side’s number is too high or too low will not advance your client’s cause.
Always ask the mediator for his or her opinion. A good mediator should give it to you anyway, but if you haven’t heard it yet, ask the mediator’s opinion whether the other side is being unreasonable. Perhaps more importantly, does the mediator think that you are being unreasonable? This is where the mediator can be most helpful by employing strategies to bridge the gap between the demand and the settlement offer.
Another unhelpful tactic is “hiding the ball” from the mediator. While it is understandable and often necessary to exclude the mediator from attorney-client discussions, it is unwise to purposefully keep important information hidden from the mediator. This is information or evidence that may potentially tip the scales in favor of one side or another, or even win the case outright. If the mediator knows about this evidence, he or she can help determine whether and how it can best be used in the mediation to help get the case settled favorably. The opposite principle is also true. Parties should confidentially disclose information to the mediator that is damaging to their own case.
Don’t underestimate the benefit of the mediator’s neutral insight. Remember, you’ve been “living” with your case for a long time, sometimes years. You may have become too close to the case, to the point that you can’t see an important issue. You may be surprised at what you’ve overlooked.
A good example is the issue of insurance. In a personal injury mediation, that’s the entire focus of the negotiations; how much insurance money will be paid to settle the case? As attorneys, we know that the issue of insurance is never allowed in court. It is such a given that the lawyers never give the issue a second thought. But have you thought about what the plaintiff thinks?
Right or wrong, the opposing insurance company is usually the focus of the plaintiff’s attention. The plaintiff probably has thought of nothing else leading up to the mediation.
Most plaintiffs with no courtroom experience just assume that they’re going to be able to talk about the supposed injustice that they have faced due to the alleged actions or inactions of the insurance company. They assume that they’re going to be able to talk about their interactions with the insurance adjusters. They assume that the jury will know the amount of insurance coverage. They assume that the jury will hear about the perceived unfairness of the settlement negotiations leading up to trial.
Of course, the lawyers know that’s never going to happen. That’s why I make a point to tell the plaintiff this important information early during negotiations, that even the word “insurance” can never be mentioned in court. Nine times out of 10, the plaintiff has never been told this information. This revelation instantly changes the landscape for the plaintiff. I have seen this interaction lead to the settlement of many a case.
I’m not suggesting that by telling the plaintiff about the insurance issue that I’m targeting the plaintiff in order to gain an advantage for the defense. I’m simply pointing out one example of how the mediator can engage with one party in a surprisingly simple way in order to move the negotiations forward.
WHAT ABOUT YOUR SETTLEMENT AUTHORITY?
I’m about to suggest what some may believe to be an unthinkable strategy. Mediating parties should give serious consideration to revealing their settlement numbers to the mediator. That means that the defense should tell the mediator the amount of their authority, and the plaintiff should tell the mediator what they will accept to get the case settled.
Some lawyers have no idea what the number is—either they haven’t discussed it with their client or their client won’t tell them. This happens equally with plaintiffs and defendants and can make for some strange caucus sessions. Other lawyers simply can’t bring themselves to reveal this information to the mediator. After all, your settlement number is your biggest secret, isn’t it?
If both sides reveal their “bottom lines” to the mediator, one of two things will happen. The first possible outcome should be obvious. If the numbers are light years apart, and if there is little chance of bridging that chasm, the mediation will probably end early and the parties will not waste time and money.
I have personally found that there is usually a different outcome. Interestingly, when both parties are honest about their bottom lines, the numbers often overlap each other or are fairly close. Of course, a mediator is not going to reveal any numbers to the opposing parties, but I will tell both of them that their case has a good likelihood of success and it’s worthwhile to keep negotiating.
Even if only one side reveals its settlement number to the mediator, it can be tremendously helpful in getting the case settled. The mediator’s task is to hit the target, and that task is made immeasurably easier if the mediator knows where the target is.
Revealing one’s trial strategy and settlement authority to a mediator may take a tremendous leap of faith for some. If you haven’t tried it before, trust your mediator with your most closely guarded information. You may find that you will be pleasantly surprised at the results.