Have you been settling complex or high dollar litigation cases at mediation? In the current economic and legal climate, I seriously question the advisability of attending mediation in any case with damages in seven figures. Whether it be a products case, a railroad accident or a trucking accident, the result seems to always be the same — a colossal waste of time and money. In fact, I cannot remember the last time I actually had a case settle at mediation. This is not to say that I have not had any recent settlements. The vast majority of civil cases still setttle before trial, but in my experience more and more of these settlements are occurring outside of a mediation setting.
A familiar pattern seems to be appearing time and time again. First, we spend a significant amount of time and often money preparing for the mediation. In most cases, we prepare comprehensive presentations – the dog and pony show as many of us refer to it. This often entails hours of preparation. On the one hand, preparing the dog and pony show can be a useful exercise in identifying strengths and weaknesses in the case and can act as a type of trial preparation. On the other hand, a substantial amount of time is expended in this exercise that does not directly benefit trial preparation. In other words, time is invested in strictly preparing for a mediation that simply would not have been spent, but for the mediation. When the case does not settle at the mediation, or as a direct result of the mediation, that time and effort is wasted.
This unnecessary waste of time and money has finally led me to the conclusion that we should not even engage in formal mediation at all in a complex or high dollar litigation case unless forced to attend by the Court. Why? Because I already know what will happen the next time we mediate. I will have to sit across the table from insurance adjusters, corporate representatives and defense lawyers while they puff their chests, glare at me disdainfully and tell me why I will lose the case. They will brag about how successful they have been in exactly this kind of case. They will tell me that I will not be able to get a large verdict in whatever venue the case resides. No matter what the damages, they will tell me that their client simply will not ever pay seven figures. If it is a really good day, they will feign sympathy for my client which will inevitably come off as condescending and uncaring. Finally, they will likely make a ridiculous attempt to drive a wedge between attorney and client so that my client will doubt my advice later in the day when money starts to be offered.
After this egomaniacal display of chest thumping, we will split up into separate rooms and let the mediator attempt to earn his fee going back and forth with demands and offers. We will make a reasonable demand. Despite the fact that the defense will have our demand for weeks before the formal mediaion, it will take the defense at least two hours to make their first offer. The first offer will be utterly useless, will be more than likely insulting and will be accompanied by the familiar phrase that our demand is way out of the ballpark and there is no way the defense can even negotiate until we make a big move. Of course the mediator will assure us that our big move will be met with a big move by the defendant. If we are stupid enough to actually beleive this, we will lower our demand significantly only to be dissappointed in what the defendant has sent back as its “big” move. This ridiculous game will continue for several hours until the defendant eventually says they have reached the limit of their authority and we all go home because the limit of their authority is never even close to an amount that will settle the case.
Defendants, defense counsel, adjusters, corporate executives — HERE IS SOME VALUABLE INSIDE INFORMATION — we already know this is what you will most likely do and are prepared for it. It does not make us lower our expectations.
In reality, we have known all of this for years. Clearly there is a CLE (continuing legal education) seminar or class somewhere that teaches this nonsense because it is repeated over and over again. As a result, we attend mediations with no expectation of settling the case and our clients attend mediation with no expectation of settling the case. The only people that actually benefit from this process are the defense attorneys and the mediator, all being paid by the hour whether the case settles or not.
There really is only one way to change this cycle and divest defendants, insurance adjusters and their attorneys of the mistaken belief that these tactics benefit their clients — refuse to play the game.
This is the course I have chosen and I encourage attorneys handling these types of cases to give it a try. Of course there will always be exceptions to this mediation boycott, but the default position I am choosing to take going forward is not to mediate without a court order and to dedicate all of my time to preparing the case for trial. If a reasonable offer is made by a defendant, I will then consider mediation. If not, I will certainly not miss attending that all too familiar dance that almost never pays off with the coveted goodnight kiss.