Law Tips: Mediation II

What’s The Bad News? – Your Client Needs to Hear Both Sides of the Case
“Up until mediation, often the plaintiff has only heard the other side of the case, or the bad news, vaguely through his or her counsel.” Tony Patterson, ICLEF faculty member from Lebanon, Indiana, is frank about what helps and hinders getting cases settled at mediation from the plaintiff’s perspective.  Law Tips this week shares a few of his observations from opposing counsel.

In many instances, plaintiff’s counsel is hesitant to express and explain the bad parts of the case.  This hesitancy can result from plaintiffs counsel’s inability to fully recognize and appreciate those problems because either their judgment is clouded or affected by their loyalty to their client, or because they may be hesitant to explain the case problems to the client for fear the client will interpret these explanations as evidencing the lawyer’s doubt or failure to “buy in” to the plaintiff’s case.  In other words, plaintiffs want to feel their lawyer “has their back.”   If a plaintiff’s lawyer too strongly explains the bad parts of the case, many plaintiffs’ lawyers fear that they will lose their client’s confidence.  Because of this issue, it is important for defense counsel to assume that the plaintiff’s lawyer has not fully explained all the bad parts of the case to the plaintiff.

Because defense counsel is paid hourly and has an hourly paid staff, in many instances, defense counsel will know the records better than the plaintiff’s counsel at the time of mediation.  Therefore, it is important that defense counsel explain the negative aspects of the case to the plaintiff during the opening statement.

It is also important to convey both sides of the case in a non-confrontational manner.  I have seen many cases which I felt would be resolved that blow up due to a contentious and confrontational approach taken by defense counsel.  Conversely, however, I have also seen confrontational situations diffused and compromises reached when defense lawyers have taken a less adversarial tone.

One of the more effective approaches I have seen through the mediation process was taken by a defense lawyer in a rather contentious case.  The plaintiff was very anxious about the process and I was concerned that the initial mediation caucus or session might blow up.  Nevertheless, we proceeded to a join session and I presented my case.  At the conclusion of my position, the defense lawyer calmly looked across the table at my client and began to proceed.  He started out with a simple statement to the effect of “Ma’am I understand this case has been very difficult for you and I know you’d like to settle this case.  My job today is to explain to you the way we see the case and where my client is coming from.  Hopefully, we’ll be able to resolve this case but we may not be able to.  If we don’t settle the case today and you leave here not understanding why the case didn’t settle or why we didn’t offer you more money, I have not done my job.  As I discuss this case now, I want to make sure you understand that it is my obligation to explain to you why we feel your case is not so clear cut.”   

This approach was received by my client very well.  The defense lawyer did not take a confrontational tone and the points he made following this initial statement were not interpreted as being overtly confrontational or threatening.  In the end, my client did not like or agree with the statements defense counsel made, but they were certainly understood to be necessary to openly evaluate and discuss the case.  Fortunately, after this presentation and a long mediation session, the case was settled.

It can also be very effective if the defendant can pull out prior records and explain to the client any issues of pre-existing conditions which may affect the valuation of the case.  Many plaintiffs, honestly or dishonestly, deny pre-existing conditions to their counsel only to have these conditions uncovered during the gathering and evaluating of their prior medical records.  For this reason, a defendant’s use of prior records or statements post-accident will be beneficial in explaining his or her valuation of the plaintiff’s case.

That said, knowing when to stop and simply move on to a discussion about money is also important for the defense.  While the initial blast regarding medical records can be effective, once knee deep in the mediation process, clients become agitated if every time the mediator comes back the defendant blasts them with a new medical record.  Although it can be helpful to point these out, the medical records must not be overused and there must be some finesse and judgment exercised in determining when to call off the dogs and simply discuss the numbers to see if the case can be resolved.


About our Law Tips faculty member:
Anthony W. Patterson, Parr, Richey, Obremskey, Frandsen & Patterson, LLP, Lebanon, Indiana, has extensive experience representing personal injury victims and wrongful death survivors throughout Indiana and the Midwest.  Mr. Patterson’s personal injury practice includes diverse concentrations in areas such as automobile and trucking accidents, medical malpractice and all other areas of the firm’s injury practice.

We appreciate Tony Patterson sharing his mediation expertise once again through Law Tips.   You can hear his entire CLE presentation as well as other expert faculty during the Video Replay or the Online/On Demand Video of Representing a Client in a Mediation: Preparing Yourself, Your Client and Your Case.

About our Law Tips blogger:
Nancy Hurley, Law Tips blogger, has long-standing connections with Indiana lawyers.  She was formerly a member of the ISBA and IBF staffs for over 30 years. Nancy’s latest lifestyle venture is with ICLEF. We plan to utilize her exceptional writing and interviewing skills while exploring how her Indiana-lawyer background fits with ICLEF’s needs.  When she isn’t ferreting out new topics for Law Tips, her work can be found in our Speaker Spotlight blogs, postings on the ICLEF Facebook page, Twittering and other places her legal experience lends itself.

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ICLEF • Indiana Continuing Legal Education Forum, Indianapolis, IN

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