The Strategic Way to Participate in Mediation

The strategic way to participate in a mediation

A top personal injury lawyer Little Rock, AR trusts spends time and effort preparing a case for trial prior to even agreeing to mediate.  One important prerequisite to agreeing to mediation is that the trial date has already been set, and preferably, is approaching.  Defendants have little motivation to provide a top dollar offer at mediation unless the pressure of trial is on the horizon.  If it isn’t, it isn’t worth your time to mediate.

Confirm attendance by adjuster with authority

Unless this is a small figure soft tissue case (and sometimes even then), the most important person to be in attendance is the insurance adjuster with authority to extend pecuniary offers to settle.  Having someone available by telephone isn’t optimal…neither is having someone in attendance that doesn’t have ultimate authority to extend offers.  It does no good to you if the person you’re trying to persuade is not at the mediation.

The opening statement

Opening statements are becoming less and less frequent at mediations.  Many times, the mediator will make a short statement himself/herself and then separate the parties.  Sometimes, the parties will be separated from the beginning.  If an opening statement is available, it can help drive up the value of your case (1) only if the insurance adjuster is present, and (2) only if he/she has not seen many of the most persuadable exhibits.  Also remember that an opening statement in mediation will be helpful only to the insurance adjuster.  The mediator cares little to nothing about the merits of your case – he’s simply there to assist the parties in finding middle ground.  Further, your opening statement can (a) telegraph your trial opening statement to the defense and (b) drive up unease and friction with the defense attorney for the duration of the mediation.

Movement in mediation frequently happens towards the end

One of the most important reminders in mediation is to hold back persuadable talking points.  The mediator will make at least a dozen trips back and forth between rooms.  You should have ammunition for him to send back each time he leaves your room.  Otherwise, he won’t be armed with any talking points to help increase the Defendant’s offer from their current offer.

With that in mind, it’s also important to save many of the most damaging talking points to the defense until after lunch.  That’s usually when the movement happens, and you want to be able to make the largest moves at that time.  This can be the difference between an offer that you really have to consider versus trial, or an offer that you believe would be comparable to a jury’s finding on a great trial day.

For these reasons, it is imperative to hire a veteran trial lawyer with experience in mediations. 

Thanks to Steve Harrelson and our friends and co-contributors from Harrelson Law Firm, P.A. for their added insight into mediation strategy.