Money on the Table: The Biggest Mistake Attorneys Make in Mediation

Posted by Courtroom View Network on Nov 22, 2019 11:33:29 AM


Stock image.

Promoted Content: From time to time, CVN will highlight services that we believe are of interest to our readers. 

With the vast majority of cases settling before verdict, settlement strategy is often more crucial than trial strategy when securing the best outcome for a client. But while attorneys spend hundreds of hours prepping for trial, they commonly fail to capitalize on pre-mediation opportunities. It’s a mistake that can hamstring them throughout the mediation process, one of the industry’s leading mediators told CVN.

“Pre-mediation is really the beginning of establishing a relationship with the mediator about the case and shaping the ultimate conversation about mediation,” Andrew Nadolna, of NadolnaADR and JAMS, the world’s largest private alternative dispute resolution firm, told CVN.   

“A lot of lawyers just show up at the mediation session and have not paid a lot of attention to pre-mediation, and it’s a lost opportunity to have strategic impact.”

The Foundation of a Resolution... on Both Sides of the v. 

Nadolna, a former Global Head of Casualty Claims at AIG, draws from his deep insurance and legal background to mediate coverage disputes and a broad range of litigation, with a history that includes dozens of complex cases.

He said pre-mediation communication, ranging from detailed written submissions surrounding a claim, to calls about background and information that a lawyer may not want to put in writing, help the mediator understand nuances of a case and work on strategic considerations important to a resolution. “If you’re not doing that work until you show up at the session, you’ve lost a huge opportunity to learn what questions the mediator has going in and where he thinks your soft points are so you can be ready to respond to those,” Nadolna said. 

And beyond setting the stage for an agreement with the opposing party, he said pre-mediation is crucial to quickly resolving conflicting priorities among parties on the same side of a case. These issues are common, and can unexpectedly undermine otherwise productive negotiations. 

“I’ll often find situations where lawyers on opposing sides have pretty similar views on what the value of the case is, but there’s disagreement between one of the lawyers and their clients, or one of the lawyers and the insurance carrier in the background,” Nadolna said. “If that comes out in the pre-mediation process, a mediator can prepare for it and look at dealing with the issue. 

“Sometimes the mediator just needs to say to the client what the lawyer has been saying in the mediator’s own words, and the client will receive it better that way,” Nadolna said. “Sometimes there’s a legal case one party or another doesn’t understand fully. As a mediator, those issues really involve looking at the merits of the case and the nature of the dispute and finding a way to bring some closure.”

Pre-Mediation and a Successful Sit-Down 

The pre-mediation process is particularly important when a joint session is planned, which Nadolna said can pose a variety of pitfalls, particularly if emotions run high and parties don’t have clear expectations for the meeting. He said he uses pre-mediation not only to set the parameters for a joint session but to bleed off emotion that could scuttle a potential settlement if it arises in a joint session. 

“Most of the emotion should come out in pre-mediation shared written submissions,” Nadolna said. “I encourage both sides to go at each other hard in the written submissions and get it off their chests, so that by the time we get to the joint session we’re into the next phase of argument. We’re refining things and hopefully we’re past that emotion and collaborating to try to find a settlement.”

Nadolna advises attorneys to approach those joint session openings differently than they would at trial. “You want to focus on your most powerful points, you want to be very brief about those powerful points, maybe 20 minutes tops, and you want to see what kind of reaction you get from the other side of the room,” Nadolna said. “You’re not trying to convince a judge or a jury that you’re going to win. You’re trying to convince the other side that they should see more risk than they’re currently seeing and negotiate differently.”

Strategy Development and Driving Momentum

And importantly, the pre-mediation process should provide attorneys the opportunity to develop a flexible negotiation strategy, something Nadolna said too few lawyers take advantage of. 

For example, “after hearing the opening number from their opponent, attorneys will often retreat to their room, be shocked and appalled at how high the number is or how low it is, depending on which side they’re on, and they’ll spend hours trying to formulate a response,” Nadolna said. “It’s a relatively simple thing to work with your client to have Plans A, B, and C, with a couple of moves under each of those plans prepared in advance. You’ll get much farther into the mediation faster and find out more about the other side’s negotiating position.”

That kind of preparation, and the groundwork of communication that a strong pre-mediation lays, can be the key to a settlement. “I think mediation tends to create its own momentum when it’s going well,” Nadolna said. “If you’ve done your homework in the beginning and you’ve done your pre-mediation work, it tends to bring everybody together.”

Related Information

Learn more about Andrew Nadolna and his approach to mediation.