Trial lawyers have many tools to prepare cases for trial. We propound interrogatories, requests for production and requests for admissions. We take depositions, we do legal research, we file dispositive motions, and we move for continuance when strategically necessary. In addition, we go to mediation.
While mediation is designed to help parties resolve their disputes, it is also a powerful tool to prepare a case for trial. This article discusses how we use mediation to prepare for trial if the case is unable to settle.
Why go to mediation? What are the reasons to decide to go to mediation? First, during litigation you have come to believe that your case is so strong that the other side, presented with your arguments, will want to settle the case in your favor. Second, during the course of litigation you have discovered flaws and weaknesses that make it a good idea to resolve the dispute in the best way possible. Third, the case that was so important to your clients when it first came to you, may have lost some of its importance over time. For emotional, personal, physical or financial reasons, a client may no longer be willing to invest in this litigation. All of these reasons make mediation a good opportunity.
What are the goals of mediation? The primary goal of mediation, of course, is to settle a dispute. For many reasons however, sometimes a case can’t settle at mediation. In that situation, there still are many valuable things to gain from the process. By mediating, you can prepare your case for trial, learn about the other side’s case, narrow the issues for trial, build a better relationship with the client and gain input from the mediator.
Prepare the case. As you litigate the client’s case, you conduct written discovery and take depositions. You research the law of your case and you start anticipating how you will respond to the other side’s arguments, and how they will respond to yours. Often times, preparing for mediation is the first time that you have the opportunity to sit back and assimilate all of the work that you have done. To prepare for mediation you will need to do just that.
When the mediation is set and you begin preparing, you will want to prepare a cogent theory of your case that will put the other side at risk. To do so, you will have to assimilate the evidence you have adduced in discovery, the legal research you have conducted and your analysis of the other side’s case that you have inferred from their discover their motions and their pleadings. The benefit of doing this is that you go to mediation prepared to influence the other side’s view of the case and encourage the adversary to resolve the dispute.
Learn about the other side’s case. Presumably, the other side has prepared for mediation as you have. While you have inferred the other side’s theory of the case through their pleadings, discovery, deposition questions and legal motions, you probably have never heard the opposing lawyer make a cogent presentation of the theory of his client’s case.
The opening session of mediation provides that opportunity. Certainly, through the course of the caucus sessions as the parties negotiate back and forth, you will have additional opportunities to explore and question the other side’s case. This is an invaluable opportunity that allows lawyers to narrow the scope of issues for trial, learn what areas need additional discovery, and determine whether motions for summary judgment should be filed.
Partner with the client. Clients go to see lawyers either because they are upset that they have been wrongfully sued or they are upset because someone has taken advantage of them. In either case they need the help of an attorney and are unable to handle these problems on their own. The lawyer explains what he or she will do, and the client leaves feeling that the dispute is in good hands.
During the course of litigation however, clients are not active players in trial preparation. They may receive updates and assist with discovery, but mostly they wait and hope that you are handling their problems for them. At mediation clients get to work with their lawyers cooperatively to try to resolve the dispute. This is very important to clients; it empowers them and gives them a say they may otherwise have not had.
To prepare them to work with you, it is important to give them the information that you provided the mediator. The benefit of working with clients at mediation is that it gives them a say in their dispute, lets them see the good work you have done for them and ensures that the decision-maker is in the best position to make a decision about their case. The benefit of this is that you build a better relationship with the client in this particular litigation and you open channels for future cases with your clients and referrals from their friends and associates.
Learn from mediator input. Prior to mediation you may have never had the opportunity to have a third party offer feedback on the case or to discuss the case with an objective person. While the mediator is not supposed to offer an opinion about the case, the strengths and weaknesses of the case often become apparent from the questions asked and the responses given. In this way the mediator provides a glimpse of how a jury might look at the case at trial. Through the mediation process you may rethink the theories of your case and want to go in an entirely different direction.
Mediation is the best process for a well-conceived resolution. Where resolution is not possible, mediation as discussed above will prepare you to try a better case.