Lesson I – The Mediator Should Know the Target Audience and Tailor the Opening.

In Mr. Smith’s his experience, the best mediators know their target audience and tailor their opening accordingly. Most mediators have a canned speech discussing the nature of mediation process, the role of the mediator and the confidentiality of the process. Mr. Smith believes that the best mediators not only explain the basics of mediation, but go beyond that – they explain the litigation process, especially the risks inherent in proceeding to trial. He believes that it is impossible to reach settlement until the parties understand that the matter before them is a risk-analysis exercise.

The questions facing the parties at mediation are really how much risk does each party bear in taking the matter to trial and how much is each party willing to forgo in order to ensure an acceptable result. Far too often, he encounters mediators who do nothing to help set realistic expectations and explain that the parties will not achieve their “best case scenario” at mediation.

Claimants get lots of advice from friends, family and co-workers, most of which is in the form of a story about their cousin who got $500,000 for a hangnail. The parties, specifically, PI claimants, need to know that for every jury that awards millions of dollars for spilt coffee, there is another than finds in favor of the defense.* The mediator must remind the parties that if they squander their opportunity to control their own fate, they leave it in the hands of, in Mr. Smith’s words, “twelve people too stupid to get out of jury duty.”

More tomorrow on the benefit of a well timed apology.

*P.S.. – When I spoke with Mr. Smith today, he was on his way to hear closing arguments and await the verdict in a case which he was overseeing. He just sent me a message from his Blackberry – “defense verdict.” It was a case in which both liability and damages were in dispute, but the plaintiff had unrealistic expectations – he refused to come below $2.5 million during mediation. Now, because Mr. Smith made an offer of judgment for 10% less than his highest offer at mediation, the plaintiff may end up owing Mr. Smith’s company almost $100,000 in fees and costs.