Mediation: Practical Tips From a Mediator December 29, 2017 Thomas R. Juneau, Sr.
Thomas R. Juneau, Sr. trj@juneaudavid.com Thomas R. Juneau, Sr. has served as mediator in over 1,000 disputes in Louisiana, California, Texas, and New York, ranging from basic, two-party casualty matters to complex, multi-party class action lawsuits. The vast majority of his mediations result in a settlement, and he is tireless and creative in his approach to getting cases resolved. Mr. Juneau completed mediation training at the Straus Institute for Dispute Resolution at Pepperdine Law School, ranked the #1 dispute resolution program in the country by U.S. News & World Report. He is a member of the Academy of Court-Appointed Masters. Mr. Juneau is a partner with Perry Dampf Dispute Solutions and a shareholder with Juneau David, APLC. With nearly twenty-five years of litigation experience, he has tried multiple cases for both plaintiffs and defendants. He is AV-rated by Martindale-Hubbell (highest possible rating) and has been repeatedly recognized as a Louisiana Super Lawyer. Mediation Experience Over 1,000 successful mediations Examples of types of cases mediated: automobile; bad faith; casualty; class actions & mass torts; energy/oilfield; environmental; insurance coverage; maritime; medical malpractice; premises liability; product liability; professional liability; trucking; wrongful death Special Master Experience Appointed by various courts to serve as Special Master in complex class action lawsuits Selected for membership in the Academy of Court-Appointed Masters Bar Admissions Louisiana; Texas; District of Columbia U.S. District Court: Eastern, Middle, and Western Districts of Louisiana U.S. Court of Appeals, Fifth Circuit U.S. District Court, Southern District of Texas U.S. Supreme Court Memberships Academy of Court-Appointed Masters Fellow (A.C.A.M.) Product Liability Advisory Council (P.L.A.C.) Louisiana State Bar Association A.D.R. Section Defense Research Institute (D.R.I.) Louisiana Association of Defense Counsel (L.A.D.C.) Louisiana Bar Foundation Fellow College of Master Advocates and Barristers Education J.D., Tulane University Law School (1994) Justice, Tulane Moot Court Board Best Advocate, Dominick L. Gabrielli National Moot Court Competition, Albany, NY Member, Tulane Civil Litigation Clinic B.S., Louisiana State University (1991) 2
1. When is the best time to mediate? a. Pre-suit? Before discovery? After discovery? After motions? Eve of trial? Some people insist that you should mediate early in the case, before heavy costs are incurred. Others insist that you should never mediate early in the case, usually because they claim the other side will not be serious about settlement at an early phase. b. I have seen a trend towards the parties conducting mediations much sooner in the process than we used to see. This is driven in part by the increased cost of litigation for both sides. Example of a comment from the defense: I know what Dr. Feelgood is going to say in his deposition because I have deposed her several times. Rather than spending that money on the deposition, let s try to put that money in the plaintiff s pocket. Example of a comment from the plaintiff: My client cares about how much money he puts in his pocket, not how much the defense pays. Every dollar we spend prosecuting this case is a dollar taken out of my client s pocket. I think it is also driven in part by the fact that most attorneys and corporate defendants now have much experience with mediations and are more comfortable with the process than they used to be. c. The short answer to the question, in my experience, is It depends on the case. Example #1. Highly emotional wrongful death case with gut liability. Both sides might benefit from an early mediation. I have even mediated wrongful death claims before the lawsuit was filed. The plaintiff can avoid the emotional turmoil of litigation. The defense can avoid the expense of defending the claim and perhaps the publicity of a lawsuit. Example #2. High value business dispute with complex facts and multiple legal issues. This is the type of case which might require some discovery and perhaps even some motion practice to narrow the scope of the issues before it will be ripe for mediation. 3
2. Importance of plaintiff sending all necessary information to the defense well in advance of the mediation a. The sooner the better. b. Unlike plaintiffs, the vast majority of defendants can t materially alter their evaluation of a case on the day of mediation. Most defendants (especially insurance companies) get their settlement authority based upon a very regimented process which takes time (weeks and sometimes months). This includes compiling and analyzing the pertinent records, getting the defense attorney s evaluation, and presenting all of the information to a committee. Adjusting that evaluation on the eve of mediation or on the day of mediation can be very difficult if not impossible. c. Remember that defendants do not like to adjust their evaluations, absent a material change in circumstance. Thus, I strongly recommend sending all pertinent information to defense counsel ASAP even before the mediation is scheduled. 3. Pre-mediation checklist for a personal injury case a. Ensure that both sides have all necessary factual information well in advance of mediation b. Past medical bills, including liens (include itemization of bills) c. Future medical bills, if any d. Radiological studies e. Operative reports and surgical recommendations f. Recent medical reports g. Are clients attending mediation in person? h. Whether to send a pre-mediation demand/offer i. Manage client s expectations j. Advise mediator of client control/expectation issues k. Consider whether an opening/joint session would be beneficial 4
4. Prepare clients in advance of mediation a. Explain the process to your client b. Manage client s expectations c. Identify strengths and weaknesses for your client d. Explain concept of monopoly money which is typically exchanged at beginning of mediation e. Importance of appearance/presentation in front of opponent & mediator (iii) (iv) Tone of mediation is different than tone of trial Attorney won t be aggressive at mediation Patience Tell the client to bring something to read or play 5. What to send to mediator in advance of mediation? a. I have some mediations where parties do not send me anything before the mediation. In other cases, I have attorneys send me 1,000 pages of medical records and deposition transcripts. b. Remember that a well-prepared mediator can help the parties have more meaningful discussions and can help the mediation itself be more efficient. c. Position papers are always helpful to me. 6. Suggestions for a good position paper a. Description of the case, including key legal and factual issues b. Status of the litigation c. Strengths and weaknesses of the case I am always impressed when an attorney lays out not only the strengths for her side of the case but also the weaknesses. This lets me know that the attorney is aware of those issues and also helps me to deal with the issues with the other side. f. Summary of previous settlement discussions 5
g. Any roadblocks to settlement? liens; personalities of attorneys or parties; etc. h. Client control or similar issues This is vital to the mediator. If you don t want to include this in your position paper because your client might read it, you can instead either call the mediator or send a separate letter/email explaining these issues. 7. Attendance in person by clients a. Usually preferable, but not always b. Seek clarity on this before the mediation c. If client is not going to be present, ensure that she will be readily accessible. It is very frustrating when discussions get delayed because the client is not immediately accessible. 8. Joint session with opening statements are they helpful? a. Some people insist on them; some people despise them b. Some clients need this (i.e., plaintiff having day in court or hearing weaknesses from defense attorney) c. Can be more harmful than helpful in certain cases d. I don t believe in a cookie cutter approach 9. Opening statements suggestions a. Be cordial and nice Statistics show that cooperative negotiators are more effective than competitive negotiators. b. Opportunity to show the other side that you will be effective at trial Strong command of the facts Aware of strengths and weaknesses Come across as being fair and reasonable c. Let the other side know you have an open mind and are there to listen 6
d. Great value in defendant apologizing to plaintiff e. Possibility of the client speaking Can be very effective Be sure to discuss this with client in advance f. Listen with respect during opening joint session I have seen some parties fail to do this, and it creates a horrible tone for the mediation. Example #1: Plaintiff grimacing and talking back to defense attorney during defendant s opening presentation. Example #2: Insurance adjustor typing on his phone throughout the opening presentation by the plaintiff s counsel. g. Are Power Point presentations effective? As a general rule, I typically advise against doing a Power Point presentation If one is done, it needs to be very well done and I suggest that it be limited to only a few slides 10. Are we losing the focus on truly trying to resolve cases on the date of mediation? a. Trend toward a two-step process (mediate first and then do follow-up work to settle the case) b. Advantage of having a mediator influence parties on either side, without the attorney filter 11. Impasse a. I find that many parties prematurely declare an impasse in the negotiations. o A comment I commonly hear is, That is my bottom line. o I often translate this comment into, Knowing what I know right now about the case and the other parties, I am not inclined to move from this position. 7
b. If the parties truly reach what appears to be an impasse in the negotiations, keep an open mind and be creative about possible ways to break the impasse. Below are a few examples of methods to break an impasse. (iii) (iv) (v) (vi) Bracketing Mediator s proposal Gasquet settlement (in cases with excess insurance carriers) Make agreement contingent upon certain conditions High/Low agreement Resume another day last choice 12. Bracketing a. Example: Plaintiff is at $2,000,000. Defendant is at $75,000. The parties are inclined to move in very small increments in light of the disparity between the numbers. The defendant might propose that it will move to $500,000 if the plaintiff will drop down to $1,000,000. b. Some people love brackets; some people hate them c. Interpreted by different people in different ways d. When to bracket 13. Mediator s proposals a. Different types, including double blind proposal b. Advantages and disadvantages c. When to use d. How to use e. Consent of all parties f. Should not be used with too much regularity (otherwise, people become dependent on them) 8
14. General tips a. Help the mediator position paper, etc. b. Prepare yourself & client c. Prepare for opening statement, just in case d. Use the mediator must have confidence in the mediator listen to what he/she says they should help guide the process e. Be flexible f. Be creative g. Be honest with the mediator (iii) Like a jury trial, credibility is critical You have to pick a mediator you trust The mediator can provide more assistance when he/she truly understands the parties positions 15. Momentum a. I have found that momentum settles cases b. Sometimes sooner, sometimes later c. Studies have shown that the party to make the first reasonable proposal usually benefits the most in the end d. You control your actions & decisions focus less on countering an opponent s proposal focus more on giving the process the best chance to work 16. BATNA/WATNA a. Best/Worst Alternative To A Negotiated Agreement b. Consider this and discuss it with your client before the mediation 9