It’s Closing Time – 5 Tips for Successful Mediation

If you’ve seen the hit TV series Suits, you already know a thing or two about closing a deal from Harvey Specter – the self-proclaimed “best closer in New York City.” It’s hard to deny Harvey’s lofty title when you consider his track record. Harvey averaged around one to two multi-million-dollar settlements per episode.

While wrapping up the entirety of a major lawsuit in the span of 45-minutes makes for great television, it’s a far cry from reality. Lawsuits are usually a long and grueling process with many ups and downs. There are numerous key events in the life of a lawsuit. Mediation is one of the most important.

Mediation is often the best opportunity you’ll have to settle your case before trial. Mediation should be taken very seriously, and it is vitally important that you have a lawyer in your corner who knows how to close the deal.

IMcP’s lawyers have substantial experience in maximizing the value of their clients’ claims and securing extremely favorable settlements at mediation. Below are five tips to put yourself in the best possible position for success at mediation:

1. Timing is everything. Every plaintiff wants to settle his or her case – and get paid – as quickly as possible. The dream scenario is the opponent completely waiving the white flag and settling in response to a demand letter. Sometimes it is best to mediate early in the dispute before a lawsuit is even filed. For example, if your primary settlement leverage is your opponent’s desire to avoid the negative publicity and reputational exposure of a public lawsuit, then mediating pre-suit may be the best opportunity to settle the case. In those types of cases, once the lawsuit is filed, the other side may claim that you can’t “un-ring the bell” and thus argue that there is less chance of settling the case before trial. In other cases, pre-suit mediation is required by contract; that requirement leads to very mixed mediation results caused by each side potentially employing very different strategies or goals. More often than not, the maxim “patience is a virtue” applies to mediation timing. Many defendants are not ready to get serious about settling the case until they have taken some “body blows” in the litigation. Forcing your opponent to respond to targeted discovery requests and to face the music under the deposition lights can significantly increase your settlement leverage and help maximize the value of your claims. The key is that litigants should be strategic about the timing of mediation. Every case is different. If the timing isn’t right, the mediation is doomed to fail before it even starts.      
2. Choose the right mediator. A good mediator is much more than a go-between who simply shuttles offers and counteroffers from room to room. A strong mediator can make all the difference and can potentially facilitate a resolution even when the parties appear worlds apart at the beginning of the mediation. Mediators come from different backgrounds and have different strengths and weaknesses – meaning a mediator may be a great fit for one case but not so much for another. It depends on the legal issues, facts, players, and other dynamics involved in your case. IMcP’s lawyers have a substantial network of mediators who they personally know and have utilized throughout their respective careers. It is important that your lawyer is familiar with the pool of potential mediators so your lawyer can guide you to the best choice for your case.
3. Prepare for success. Mediation should not be treated as a “check the box” activity. Parties should put in the necessary work – prior to mediation – to prepare for success. For example, mediators typically request that both sides submit confidential position statements before mediation. This is a great opportunity for you to explain the strengths of your case to the mediator – e.g., provide favorable case law, key facts and evidence, etc. – and give the mediator the ammunition necessary to help maximize the settlement value of your claims. If you don’t spend the time needed to properly educate and arm the mediator, you are hamstringing the mediator and setting the stage for a failed mediation.  
4. Convince them you’ll go the distance. The other side must know you are willing to go to trial and that you have skilled trial counsel. If your opponent doesn’t believe you are willing, or able, to go the distance, then your opponent will undoubtedly low ball you at mediation. The threat of being hit with a large jury verdict significantly motivates any defendant to settle. Perhaps the best way to strike that fear in your opponent is to hire lawyers with skins on the wall and a reputation for knowing how to win at trial. The trial lawyers at IMcP will give you that advantage.
5. The devil is in the details. The best closers actually close the deal at mediation. Many lawyers are content with leaving mediation with only “deal points” or an “agreement in principle” in hand – instead of a signed settlement agreement. That is a dangerous game that is fraught with peril. The best practice is to hammer out the details of the settlement agreement while the parties are fully engaged at the mediation session. To do this, you should think about the terms you want included in a settlement agreement before the day of mediation. You should consult with your CPA before mediation to determine how and when you would prefer the settlement to be paid for tax purposes. You should think about whether confidentiality or non-disparagement provisions will be important to either side. Litigants usually only focus on the biggest question during settlement discussions – how much? But, when closing a deal, the devil is truly in the details. The IMcP lawyers strive to tie up all the loose ends and not leave mediation until the deal is signed, sealed, and delivered.