A party to a case I mediated at the end of 2020 said to me that I was one of those “glass half full, positive people.” I laughed out loud. Rarely have I been accused of that. More often than not, people say in a somewhat snarky tone “you’re from the East Coast, aren’t you.” I am and take that to mean I am a bit of an East Coast cynic. The more I thought about it though, I realized that over the course of 2020, I had become a bit more “glass half full” in mediations. In an otherwise otherworldly year, I had seen a level of civility, preparedness and cooperation from parties in mediations I hadn’t seen before. I also saw attorneys employ techniques that I thought were quite helpful in settling the disputes. They are basic concepts but can make a real difference.
Frame negligence or fraud as a mistake. No one likes to be called negligent or a fraud. When attorneys framed liability in terms of a mistake that was made, it was better received by the opposing party. Fraud is hard to prove and it is often and generally not covered by insurance. People are able to understand taking responsibility for a mistake versus being referred to as negligent or a fraud. People can accept having made a mistake as it is part of the human condition to make mistakes. Words matter, especially in a year when many people had little bandwidth for being pushed.
Prepare your client in advance for the pivot of settlement. Attorneys who had explained to their client in advance of the mediation that their advocacy may look a little different on the day of mediation, with a slant more towards negotiation than taking an extreme stance, had better prepared clients. When lawyers don’t prepare their clients for the different tone on the day of the mediation, clients sometimes can become upset at the unexpected change. I can see which clients have been prepped and which haven’t.
Do some legwork to break ties. Have tiebreakers for anticipated “he said/she said” disputes. An email from a witness can break a tie in a dispute, especially if that testimony will be key to the dispute. Many people say, I have a witness. I always say, great, let me call them. If they give me the green light right away, I let the other side know that the witness may not be a bluff and sometimes it tips the perspective on the matter.
Make your expert available. If your case turns on an expert’s opinion, have them ready to give a brief presentation via Zoom. This shows the other side that you have prepared your case, are relying on expertise and signals you are ready to move forward if the case doesn’t settle.
Know the backlog in your county courthouse. One upside I saw from 2020 was a general willingness to resolve disputes. Despite what may have been going on in the world at large, I saw a high degree of civility in mediation. One important factor was that parties couldn’t run to the courts to resolve issues. They had to do it themselves. What was often a compelling threat if a party won’t settle no longer may be. Some counties are backed up 18 months or more. Attorneys who had a sense of the timelines of the courts in their county were able to provide their clients with a good reason to settle the dispute that day.
No one will argue that 2020 was a dumpster fire of a year and a half glass of water sure isn’t going to put it out. On the upside however, lawyers, adjusters and parties alike did a pretty damn good job of resolving disputes despite the chaos swirling around everyone. Let’s hope that trend from 2020 continues. The rest of 2020, meh, we could all do without it.