What It Takes for a Successful Mediation
I recently attended a panel discussion on mediation here in the Chicago area. This panel was well put together and included a representative from a plaintiff firm, a judge and a couple of meditators. The various opinions on this panel made for an interesting conversation, with a few specific discussions I’d like to share.
- Apologies a “Go” or “No Go”? – A thought-provoking discussion...
The question of whether to show empathy, despite the fact that there may or may not be any responsibility on the defendant’s part, would illustrate the humanity of the defendants. Interestingly enough, as much as there may be sympathy for a situation in which the plaintiffs have found themselves, the overwhelming reply from both sides as well as those mediating, was a “No Go.” An apology, while demonstrating empathy to a plaintiff typically leads to the conclusion that the defendants are acknowledging they have culpability.
- Emotions should be checked at the entrance.
The plaintiff’s side will be bringing sufficient emotions with them for both sides. It’s essential that the focus of the mediation isn’t “writing a wrong,” but rather resolving this matter within the pre-set expectations. There was an agreement to mediate for a reason, and that reason is to avoid the exposures of a jury verdict based on one or more inherit concerns with the defense. There are definitely times the target defendant didn’t have sufficient courage, which in turn, is the main reason you’re in this position. That’s why it’s crucial for the mediation to be successful.
- Know the dollar value you’re bringing to the table and what the potential ranges for jury verdicts may be.
Mediation isn’t always “the next logical step” in a case. If you feel you have a strong defense in a matter, and the plaintiff has not been willing to move off his or her demand, it may be a poor choice to consider mediation. At times there are multiple defendants or layers of coverage involved in a scenario. Knowing what those other defendants or coverages are willing to bring and/or involving those parties is essential.
- Closure is the ultimate success.
Keep in mind that if you’re mediating a case for the right reasons, a successful mediation is one in which you can bring the claim to closure. Know going into mediation, that this is the mediator’s goal, and should be the goal of the parties if this was agreed to for the right reasons.
These considerations should all be discussed with counsel, other co- defendants and carriers involved prior to the mediation. This will assist in setting expectations, and ensure the case being mediated is mediated for the right reasons, with the goal of a successful outcome.
Your company’s ability to foster effective mediation will reduce the number of open litigated claims on your loss history. As the saying goes, “The only good claim is a closed claim.”
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