Written by NACA members Justin Baxter and Bob Brennan
Advice from Justin Baxter:
First, I never judge a mediator by outcomes. Fundamentally, it’s up to the parties to settle their case. Mediators can facilitate the conversation, but I think that the mediator’s first job is to keep the parties talking long enough to settle their own case; and their second job is to act as a mouthpiece for the lawyers to address weaknesses or exposure with their own clients.
I actually want the mediator to come into the first private caucus with my client and say: 1) the judge could throw you out on summary judgment; 2) the jury could give you $0.00; and 3) you could be on appeal for the next five years. I’ve already prepped my client to hear that, so it doesn’t come as a surprise. If they come in with some tough love in the first caucus, I feel more confident that the mediator is doing same thing in the other room with the defendant.
I’m most concerned by two things that mediators do: One is being dismissive of the plaintiff, and the other is being overly solicitous. The latter is the lesser concern, but I view it as a waste of a first caucus and an indicator that the case isn’t going to settle. When a mediator comes in and starts by saying how outrageous the defendant’s conduct is or how obstreperous their settlement position is, I will engage with the mediator and try to validate their comments with my client. However, as soon as the mediator leaves to talk to the other side, I begin with my client by saying that it is a tactic to gain our confidence and compliance, and I prepare my client for a bruising afternoon of less-favorable assessments.
If the mediator is clearly biased against the plaintiff and plaintiff’s claims, that doesn’t mean that the mediation has to be a waste of time. This is an opportunity to conduct a little “jury consulting.” First, listen carefully to the arguments the mediator makes. These are shortcomings in your case that you’re going to have to address on MSJ or at trial. Second, try out some of your own new or novel arguments, to see what sticks. Third, ask the mediator questions—“What do you think about defendant’s argument X?” or “If there’s any one part of our case you think is weakest, what is it?” Then use those cues to talk to your client about additional evidence, witnesses, or arguments, and to practice testifying.
Finally, if you are mediating with a magistrate judge instead of a private mediator, remember that you may be appearing before that judge in another case, or your friends and colleagues may be. We all owe it to other consumers and consumer lawyers to try to educate the bench about the value and merit of these cases. Here are a couple of talking points I like to make to settlement judges:
- I always try to settle every case. But if the defendant can’t close the gap, we don’t view a jury trial as a failure of the ADR process, just a step along the way. This lets the judge know that you’re open to settlement, but willing to go to trial.
- My experience is that very few cases settle at mediation, but many settle shortly after mediation. The defendant needs to test the plaintiff’s mettle and see that they’re willing to walk away from the lowball offer. After that, the defense lawyer can go back to the home office and get the money necessary to resolve the case. I will often tell the mediator up front that I settle most of my cases shortly after the mediation. This lets the mediator off the hook and lets them count a mediation as a “success” if we get close and then settle in the next couple of weeks.
- I never let my attorney fees be the driver of settlement talks, and I will never let my fees stand in the way of a good settlement for my client. This takes away a big talking point from the defendant, and a misperception by the bench (which is largely drawn from the defense bar).
Advice from Bob Brennan:
Every mediator has his or her “center of gravity.” If the center of gravity is, say, in four figures or in the very low five figures and I think the case is worth a lot more, I can smell it pretty quickly, and I prepare my clients to walk out of the mediation, even if I’m paying for part of it and even if it’s just started. The “center of gravity” is where the mediator thinks the case should settle.
If the mediator has been an industry drone to me, or to my clients, I make it a practice to walk out while he/she is in the other room, so he/she is unpleasantly surprised when they return to my room with their lowball offer. That usually sends a pretty strong message to the other side. I certainly don’t do this often, but I’ve done it enough that the defendants know I will.
One mediator we used in downtown LA a lot had a “center of gravity” in the high five/low six figure range for my better cases, and we settled a lot of cases. Now the bureaus refuse to use him.
So, yeah, the attorneys and the clients ultimately settle the case but don’t underestimate the value of having a mediator with a higher “center of gravity.”
Also, if a mediator bypasses me (cut me out of the circuit) to try to talk directly to my clients, specifically to countermand my advice and presence, that’s another no-go with me. I will often warn the mediator point-blank that they are not to try to bypass me, and if they try it again, we will leave.
If a case sucks and I really want to get it off my desk, then yes, I will agree to any mediator, even an industry drone, just so they can say all the things to my client that I have been trying to say but that the client will not hear. There are times when it’s good to have an industry drone mediator.