Common Mistakes That Occur in Mediation

by AaronG on August 28, 2012

Most civil lawsuits in the United States are settled at mediation or similar types of settlement conferences. Robert Burns, professor of law at Northwestern University, reports that only 2 percent of all federal civil lawsuits went to trial in 2002, a significant decrease from the 1960s (12 percent) and the 1920s (20 percent). With mediation determining the outcome of so many cases, lawyers and litigants alike must understand and avoid the common mistakes that occur in mediation.

Lack of Communication before the Mediation

Mediation only works if all the parties are sufficiently prepared for the process. The opposing attorneys should have communicated their clients’ positions to each other well before the mediation. Mediations are not forums for surprise tactics; they are tools to get the decision makers in the same room in an attempt to work out resolutions.

If a personal injury client wants to make a $100,000 initial demand at the mediation, his attorney should consider telling defense counsel before the mediation. This allows the defense attorney to talk to his insurance adjuster client about where to start negotiations. Attorneys should also be sure that each side has all relevant documents before the mediation. A surprise photograph or tape recording or medical report cannot properly be digested in a matter of minutes. Many larger companies have chains of command, determining the top dollar they will pay at mediation well in advance of the actual conference. A surprise document will only anger and frustrate everyone involved.

Snide or Insulting Comments

It would be a mistake to make snide or insulting comments at mediation, but those clients and attorneys in hotly contested disputes may find themselves saying things they would not normally say. Everyone involved in the mediation process must keep a professional demeanor. Personal insults can burn bridges or invite overly adversarial behavior in the future. Such comments typically stem from a lack of communication before the mediation.

For example, a personal injury client may be angered by what she perceives as a low-ball offer if she is not prepared for a low starting offer.  A client who expects a low first offer and understands that the demands and offers will slowly move closer to a common number will be better equipped to avoid insulting those at the other end of the table.

Accusatory Language

Attorneys and clients alike should strive to use “I” or “we” language during mediations. Obviously the two sides will disagree about some of the underlying facts and how a potential jury will see the case. Still, using less accusatory language can communicate this difference of opinion without unnecessarily angering the other side.

For example, an attorney representing a personal injury client could say, “We feel a jury will carefully consider your truck driver’s lack of sleep in the day leading up to the accident.” This measured statement communicates the point without using angry language like, “your truck driver couldn’t keep his eyes open and you know a jury will side with us!”

Mediations require cool heads to meet together in a good faith attempt to settle a disputed claim. Do not make one of the common mistakes occurring in mediations. Come prepared, use a professional tone at all times, and avoid needlessly angering the other side. Using these techniques can result in more fruitful mediations where both sides make concessions to end a legal dispute.

About the author:  Jonathan Williamson is a former lawyer who used to specialize in DUI representation, especially as it pertained to contesting one’s blood test.

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