It’s a case. Not a huge case, maybe it’s worth $12,000 to $30,000. How do we resolve it efficiently? Same-room mediation before depositions in a motor vehicle collision case can provide the information necessary to settle without the costs of filing fees, service fees or deposition fees. Specifically, the attorney and adjuster get a chance to “eyeball” the parties through the eyes and questions of the mediator.
Many Oregon mediators prefer separate-room or “caucused” mediation to minimize the risks of dispute escalation. Attorneys are comfortable with caucused mediation because that’s the way we usually do it. Also, Attorneys may fear giving inadvertent “tells.” Some parties and / or attorneys just do not like each other, and sharing a room will feel uncomfortable, making them prefer the buffer of distance and the impartial go-between. On the other hand, parties who are willing and able to negotiate in good faith can achieve efficient results with same-room mediation before depositions. Here’s how it works.
The injured party presents his or her “bill” for economic losses supported by necessary documents: medical bills and records, wage loss information plus any other out-of-pocket losses. The parties have exchanged other necessary documents in plenty of time to have a feel that this is a case that ought to settle in a fairly limited range.
Those attending the mediation should include the plaintiff, the defendant driver, the adjuster and the attorneys. There are many reasons for the defendant driver to attend, including for the plaintiff’s attorney to “eyeball” him or her without the cost of a deposition. Experienced attorneys agree that the value of a case often turns on the relative likeability of plaintiff and defendant. This procedure allows everyone to make those judgments before making settlement offers.
Preferably, whatever boilerplate the adjuster requires has been provided to plaintiff’s counsel so there will be no post-mediation fights about wording or what constitutes the “usual terms.”
The mediator and the attorneys have discussed the format of the mediation and agree to the procedure.
Conduct of the mediation
Generally, the mediator should sit at the head of the table, flanked by the attorneys on either side, their clients next, and the adjuster behind. This makes the clients feel protected.
The mediator talks to the parties, confirming that the parties understand the procedure and ground rules.
Next, the mediator has one side or the other tell his story. The plaintiff need not go first. Sometimes there are great benefits to having defendant driver go first. If the defendant is likeable and contrite, that can go a long way toward dissipating tension. If the defendant driver is angry because he thinks the lawsuit is bogus, then everyone gets a preview of what a jury or arbitrator might see. For example, in one mediation, a commercial truck driver disclosed to the plaintiff husband and wife how scared he was that he’d lose his job. At the beginning of the session, there was some shouting caused by the pent-up stress and fears of the parties. By the end of the mediation, plaintiffs and defendant understood each other as human beings and shook hands with genuine affection.
This exchange of stories provides two main benefits of same-room mediation. The first is confidential* and efficient discovery. A mediator with knowledge of the subject matter can elicit the stories in a direct way. Often the parties will agree on many facts. Where they disagree, the mediator inquires about supporting evidence. When parties get stuck on irrelevant or inadmissible facts, a skilled mediator can allow them to express their frustrations or point and then help them realize that these issues do not affect settlement value.
The second main benefit is what I call “self reality checking,” as contrasted with the mediator’s efforts to help you understand the potential risks of trial. When the parties sit together, even though it is uncomfortable, they learn that there are two sides to the story. Too often, people and their advocates lose objectivity. We tend to overvalue our cases. As an advocate, I’m a true believer in my clients (otherwise, I drop them). As a mediator, however, I see a full range of credibility; I see evidentiary holes; and I see where some parties might be blindsided if they proceed to trial. Same-room mediation puts the attorney in an observer role. The attorney sees through the eyes of an impartial third party asking questions in a non-adversarial way. Advocates begin to comprehend that a neutral fact-finder might NOT believe our clients 100% of the time on every issue. Perhaps my biggest epiphany as a mediator is to understand how both sides overvalue their cases, and same-room mediation provides a better eye-opener for advocates than does caucused mediation.
Often, the attorneys have a very similar view of the law. When that is confirmed in joint session, then nobody says in the private session, “Doesn’t the other lawyer get it? He / She is just dumb!” Also, there are times when the client does not fully appreciate burdens of proof, and joint confirmation can facilitate reasonable proposals.
Sometimes attorneys believe they have secrets. In one case, defendant had a video of the injured person with 50-pound bags of dog food. In another case, the defense attorney believed the plaintiff’s attorney pleaded the wrong legal theory and would lose on a motion at the close of plaintiff’s case. In another, the employer had E-mails that undercut plaintiff-employee’s credibility. What to do in these cases?
If you want to try your case, then don’t mediate. Keep your secret and hope that the other side is not keeping secrets, too. Maybe all of your witnesses will show up and testify. On the other hand, maybe you’d learn that plaintiff freely admits to handling 50-pound bags or that, with the disclosure, the other attorney might push the client to settle for peanuts.
After both sides tell their stories, mediations take off in many directions.
The First Offers & Initial Impasse
In Oregon, our standard practice is to shuttle offers back and forth. Typically, both sides want to start with unreasonable positions. (How many hours and dollars have been spent letting go of unrealistic positions?) Parties use unacceptably high offers to (1) express their intense feeling, (2) hide their true evaluation of the case, (3) provide a lot of room for bargaining, and (4) preserve the chance of a windfall if the other side is stupid or weak. The result is that most mediations begin with impasse: Neither side wants to be the first to step into the realistic range
When face-to-face, however, the first offers tend to be less outrageous. Or, if the party’s offer is ridiculously high or low, usually, body language, tone or other “tells” indicate that he or she knows it is a throwaway offer. For most people, it’s harder to state something outrageous without the shield of a separate room and a mediator to blunt the response.
Also, if the parties have spent the time together reviewing the facts and law, then each side knows that the other side possesses similar information and will not be fooled by a demand that is too high or an offer that is too low.
Caucusing is common even when the parties begin in joint session. I will call a caucus for a variety of reasons including:
• The discussion has become circular or repetitive.
• Allow for venting in a way that does not escalate the dispute.
• I need to refocus a party on his or her interests.
• I want to probe the parties for their true feelings and help them understand their risks and weaknesses.
• Discuss the possible use of confidential information.
• Provide time and space for confidential attorney-client discussions.
• I want to brainstorm settlement proposals in a situation where the parties feel safe.
But, you know all about caucused mediation. The point of this post is to discuss same-room mediation. To summarize, the two key benefits of same-room mediation are: (1) confidential, pre-deposition or pre-litigation chance to evaluate key witnesses and (2) reality testing of the advocate’s subjective view of the case while he or she observes mediator discussions with the parties. Overall, in the right case, with attorneys who respect the process, a joint session can provide a more direct and cheaper path to settlement.
* ORS 36.220 et. seq. provides for strict confidentiality of mediation communication. What is said in mediation stays in mediation and cannot be used later if mediation fails.
© 2012 Jeff Merrick, Merrick Mediation Services