Want to kill a mediation?
These three statements will do it!
Most mediations start with a joint conference. The conference is a great opportunity to make sure everyone is operating from the same set of facts, and to impress both your client and the other side. Since it sets the tone for the rest of the mediation, you want the joint conference to go well. So here are three things you should NEVER say during your opening statement.
The point of mediation is to settle the case, and what you do — including what you say during the opening statement — should help you toward your goal, not steer you away from it.
1 — “It’s all your fault.”
A contentious opening statement sets the wrong tone. If what you say puts your opponent on the defensive or makes him angry, your chances of settling the case plummet. So while you want to appear confident and knowledgeable, you also want to be reasonable and pleasant. Save the blame-game for the jury; you will have plenty of time to present that side of your case if you don’t settle at mediation.
2 — “Here is a bunch of new information that changes the value of the case.”
If at all possible, you want to be sure the other side has all the information they need to evaluate the case well in advance of the mediation. If you offer brand-new information on the day of the mediation, it reduces your chances of settling the case at all, and drastically reduces the chances you can settle at the mediation.
When you bring new and different information to the mediation, parties have to reevaluate on the fly — which is never an easy proposition, psychologically.
In addition, on a practical level, some of the parties may have a difficult time responding to information they learn for the first time on the day of mediation. For example, the defendant and the adjuster may not be able to trace their way through the steps to raise their authority level. Similarly, government attorneys are not likely to be able to track down all of the players who have to approve a change of direction.
3 — “I know we demanded (offered) $x before, but we are going to have to demand more (offer less) now.”
Nothing kills a mediation faster than violating the expectations of the other side. If at all possible, you do not want to start a mediation by taking your demand higher, or your offer lower.
Assuming you find yourself in the very rare circumstance where you feel that the initial offer or demand was incorrect, how should you handle the situation?
I recently had a mediation where a defense lawyer handled just that situation, brilliantly. He came in and said, “I was not the prior attorney on this case, and now that I have evaluated it, I think the first offer was too high. BUT — I am not going to go backwards on our offer. I am just telling you I do not have much room.” And he stuck to his guns and got a very reasonable settlement for his client.
That was a wise attorney. Had he come in and said, “I think the first offer was too high, so I am going to reduce it. Here’s our new, lower number,” the case probably would not have settled.
If, due to an error, you have absolutely no choice but to lower the offer (or raise the demand) in order to be fair to your client, then so be it. But your best shot at settling the case is if you let the other side know, well in advance of mediation, that you need to change the offer or demand, and why. The opposing counsel will then have time to reevaluate the case and discuss the situation with his client.