By Mark Freeley of The North Shore Injury Lawyer posted in Mediationon Tuesday, March 27, 2018.
I have mediated many cases over the last 25 years of representing people seriously injured in accidents, but the case that I mediated on Friday seriously tested my negotiating skills.I was up against not only a large Manhattan defense firm, but the defendants’ national counsel from Chicago who seemed to be pulling the strings.When mediating serious cases you first need to know your case cold and out prepare the other side. You have to know every fact and how it helps or hurts your case, and if it hurts, show how it doesn’t hurt that much. You need to have your expert reports and trial exhibits all lined up to show that you are ready to take a verdict if necessary. You must determine the settlement range that provides your client with the best combination of compensation and risk. You have to remember that this is not about you, it’s about your client. They are depending on you to outsmart and out lawyer the other side…they need you to get in the zone.Anyone can settle a case at a mediation, and anyone can get fed up and walk out. You need to be strong, show emotion, but remain in control, make yourself liked and respected, be able to say“no”when others may say“yes”,and keep saying“no”when needed.The other side will test you….again and again. Their job is to pay the least they can. My job is to make them pay more than they want to. They are counting on you to blink first, you owe it to your client to keep your eyes open.You have to keep your client fully involved, it is their case, their injury, their life, their decision. They are counting on you to help them make the right decision that is often life changing.On Friday they tested, poked, prodded, played mind games, you name it.In a case where I knew my clients deserved a seven figure settlement, they made an opening offer of $50k. Then after a long period $75k, $100k, $125, etc. My clients were confused and didn’t understand. The mediator kept saying“bepatient”.After 4 hours I told the mediator that I was going to leave with my clients since it was clear that national counsel had no interest in settling the case. The next offer was $250k.Another 2 hours and they were at $350k, and I packed up my briefcase. They then came up to$550k, then $600k.An hour later, $700k, then $725k, I picked up my coat. An offer of $750k was then made at the 8 hour mark and I was told that was all the money they had to settle the case.I was encouraged to get my clients to accept it, national counsel told me they couldn’t understand why my clients wouldn’t accept since they were not that well off. That actually made me mad…they were actually telling me that my clients should take their offer because they were poor…that would end up costing them.I picked up my coat again and thanked the mediator for his efforts. He told me to wait and said“Whatif I could get your clients a million dollars?” I told him“no”.He went to speak to defense counsel, came back and said“Igot your clients the million, you should get them to take it.”I spoke to my clients and told them that I thought that I could get more and we agreed to say“no”.Themediator was surprised. He asked me what number would settle the case right then and there , I told him $1.4 million. He went to speak to defense counsel and came back and told me“$1.2million last offer and they are not happy”.”After going over the offer with my clients, we decided to settle. We were in the settlement range where the risk was no longer worth trying the case for them.As I was walking out after the 9 hour marathon mediation, I was told that they paid my clients $500k more than they ever thought that they would.As I drove home from the city that night I thought about everything that went into getting my clients the results that they truly deserved and I smiled. The hugs from my clients let me know how much they appreciated my efforts.I will take all that I learned into my next mediation to help my next client.Now you know a little more about what happens at mediation