Does Your Adversary & His/Her Client Have the Right Attitude on Mediation Day? by Guy O. Kornblum

Cite as 3 Litigation Commentary & Rev. 1 (April/May 2010)

Last column I discussed whether you, as counsel for your client,  had the right attitude going into mediation day— but what about your adversary and his/her client?

What do you know about the other side’s willingness to settle the case and interest in real resolution?  He/she may simply be interested in getting “free discovery” or in trying to convince you and your client to take less than the case’s “good faith” value.

Obviously if the opposition – either the client or client representative (aka: claims person) or his/her lawyer—is not fully engaged in the process of mediation, the chances for wasting the day are high.  To avoid such waste, find out beforehand the temperature of your opposition, to encourage a focused mediation.  This will increase the likelihood of settling the case.  Here are some ways to get a read of the folks on the other side:

• Direct Contact:  There is nothing wrong with a face-to-face discussion or a phone call to discuss how best to approach the mediation. Too often we rely on email to conduct our case discussions.  Email is fine for routine matters and confirming dates for case activity and calendar items.  I, however, am a bit “old school”; I like to talk to counsel personally face-to-face or by phone to gauge the level of interest.  There may be some puffing but if you have a professional relationship with your adversary, you should be able to break through and determine if there is a real interest in settlement.
• Talk to the Mediator:  Most mediators I know want to settle cases. It is how they gain a reputation as a “closer.”  If you have doubts about the sincerity of your opposition in reaching a reasonable settlement, and direct contact is not in the cards, talk to the mediator.  I have found mediators willing to contact opposing counsel and have a private and preliminary discussion to test the waters.  Timing may be an issue, as your opposition may have other work, may be preoccupied with other matters, or simply cannot reach his/her client; a later date than you had hoped for may be preferable.
• Talk to Others:  Find out who has mediated with your adversary previously and call them.  I often use a listserv for the San Francisco Trial Lawyers Association (but make sure your adversary is not tapped into it) or I call colleagues to learn if anyone has some background on opposing attorney and his/her client.
• Read the “Tea Leaves”:  Sometimes you can discern an adversary’s interest in a mediated result by reading the papers in your case.  If there is hostility, mediation may calm the waters and focus the parties on resolution rather than further fighting.  Briefs or discovery responses can reveal hostility, bitterness, anger or other emotions that serve as a barrier to a fruitful mediation.
• Put Some Pressure On: Don’t underestimate the power of pressure – significant written discovery requiring your opposition to reveal its case, focused requests for admission that require the other side to admit or deny key facts (and reveal the facts about any denial), or deposition notices can gain your adversary’s attention.  These tactics can result in an enhanced interest in negotiations.  Sustained pressure can get a case to mediation quickly, but that pressure must be consistent.  If you serve discovery, be prepared to “meet and confer” and file motions to compel if there is unjustified resistance, meritless objections or evasive responses.
• Write a Letter or Email:  Face-to-face or direct contact may be too aggressive.  If so, an email or letter inquiring about a real interest in negotiating the case is worth a try.
• Past Experience: Past experience with the defendant or opposing counsel may be telling.  We have had cases against various insurance companies on more than one occasion.  I have a good feel for how some of them approach litigation— some are willing to explore resolution at an early stage, some are not.  Often they use the same lawyers, so past experience in those cases can give you a good read on the prospects for a successful mediation and the timing for such.  The timing may be early, after some discovery (such as your client’s deposition has been taken), or after an exchange of information.
• Check Out Other Mediations Involving Counsel or Parties: I have mediator friends who have experience with insurance company defendants.  They often discuss what they’ve heard about those companies’ attitude and approach to mediation, without revealing confidences.  I frequently talk to colleagues about other law firms and those firms’ dealings with certain clients we see in our financial litigation, wrongful death and injury cases in which insurance companies are heavily involved (and other litigation in which there are repeat defendants).

These are just a few thoughts on assessing how your adversary and his/her client may approach mediation.  It is a good idea to assess and discuss this with your client before committing to the process.

Give this some thought, and

Good mediating…

*Mr. Kornblum has been a specialist in civil trials, arbitrations and appeals since graduating from Hastings College of the Law, University of California in 1966.  He is the principal in his San Francisco based trial firm, Guy Kornblum & Associates.  Mr. Kornblum is certified in Civil Trial Advocacy by the National Board of Trial Advocacy and is a Charter Fellow of LCA.  He is also a Life Member of the Multi-Million Dollar Advocates Forum.  He co-authored the recently released two volume work, “Negotiating and Settling Tort Cases,” published by Thomson West and the American Association for Justice (formerly Association of Trial Lawyers of America).  He is a Northern California Super Lawyer for 2006 and 2007.