KENTUCKY ACADEMY OF TRIAL ATTORNEYS
ANNUAL CONVENTION AND SEMINAR
SEPTEMBER 19-20, 2002
CAESARS RIVER BOAT CASINO AND CONVENTION CENTER
NICK C. NICHOLS
ABRAHAM, WATKINS, NICHOLS, SORRELS,
MATTHEWS & AZIZ
800 COMMERCE STREET
HOUSTON, TEXAS 77002
TABLE OF CONTENTS
I. INTRODUCTION………………………………………………………………………. 1
A. DEFINITION …………………………………………………………………….. 1
B. BACKGROUND AND SUCCESS………………………………………. 1
II. CONTEMPORARY MEDIATION QUESTIONS REGARDING
STRATEGY OF THE MEDIATION PROCESS IN GENERAL……… 7
III. QUESTIONS TO CONSIDER IN DETERMINING STRATEGY FOR
A. THREE MAIN AREAS OF CONSIDERATION……………… 9
B. QUESTIONS AT HAND IN DETERMINING STRATEGY FOR MEDIATION 9
IV. RESEARCH SOURCES FOR MEDIATION STRATEGY……………. 13
A. RESOURCES TO BE CONSIDERED IN PREPARING AND
EVALUATING A CASE FOR MEDIATION………………. 13
B. MEDIATOR INVOLVEMENT………………………… 15
V. SPECIFIC COMMENTS ON MEDIATION …………………… 15
A. GENERAL THOUGHTS FROM MEDIATORS AND TRIAL LAWYERS. 16
B. PREPARATION………………………………… 30
C. CHECKLIST………………………………….. 31
D. CLIENT PREPARATION………………………….. 37
VI. CONCLUSION……………………………………………… 41
MEDIATION: SHOULD YOU TIP YOUR HAND?
STONEWALL?, OR JUST SHOW UP?
I INTRODUCTION: ____ “You got to know when to hold ’em,
Know when to fold ’em,
Know when to walk away,
And know when to run.” ____
Kenny Rogers – The Gambler
Mediation has been defined by the 1987 Texas ADR Act as, “A form in which an impartial person called a mediator, facilitates communication between parties to promote reconciliation, settlement or understanding among them. A mediator may not impose his own judgment on the issues for that of the parties.” Tex. Civ. Prac. & Rem. Code, See. 154.023 (Vernon’s 1987).
B. BACKGROUND AND SUCCESS
Since the inception of the 1987 Texas ADR Act, the mediation process has been extremely successful in concluding cases of every nature in our legal system, including personal injury, medical malpractice, contracts, personal injury, patent infringements, products liability, wrongful death, domestic cases, and every matter that can be the subject of litigation and the filing of a lawsuit. The mediation process has progressed from a collateral matter, which might be considered without court appointment, to practically a fundamental component that is considered by many courts a necessity before a jury can be selected.
As Eric Galton states in his treatise, Mediation – A Texas Practice Guide:
“Mediation has now become an integral part of our civil justice system. Courts, burdened with overcrowded dockets, are either suggesting or ordering parties into mediation. Institutional and individual clients, weary of the excessive costs of litigation and the delays associated with the process, are demanding that their attorneys attempt mediation or other alternative dispute resolution mechanisms. While alternative dispute resolution also includes arbitration, moderated settlement conferences, mini-trials, and summary jury trials, mediation is by far the most favored ADR mechanism and will remain so. Lawyers are finding themselves in mediation rooms on a routine basis; yet, prior to this publication, no single practical reference was available to assist and guide attorneys in this brave new world of mediation.
Alternative dispute resolution was not designed to replace or extinguish our precious jury system. Rather, ADR was intended to serve as a meaningful companion to the litigation process. ADR, particularly mediation, provides an effective method of resolving a substantial number of the lawsuits filed. Should a mediation not resolve a matter, the parties are free to test their positions in court. In this way, cases that need to be tried are tried, and cases that can be resolved in a more timely and cost-effective way through mediation are.” (Galton, Introduction, v).
In addition to the mediation process, the role of the mediator has also grown in leaps and bounds since the early stages of the casual once-a-week mediation to the now full-time mediators who no longer have a trial practice or hold the role of a retired judge. Mediators have a full mediation docket, sometimes six days a week, which include all phases and types of litigation. The mediator’s role, like the mediation process, is an extremely important element in the handling of mediation cases and in an attempt to conclude the matter by compromised settlement. Mediation, through the appropriate mediator, provides an alternative method of moving and settling some of the 90+% cases which will eventually settle in any event and can often stimulate an earlier and more acceptable resolution to many disputes. Mediation does not impair or violate the adversarial process and often can be the only procedure to resolve a matter without complete risk, untold expenses, and time consumption.
From a general observation standpoint, Peter A. Carfagna, author of Show Me the Money published in the Dispute Resolution Journal, February-April, 2002 (57-APR Disp. Resol. J.9), stated:
“At IMG, we process in excess of 6,000 contracts per year on behalf of our company and our individual and institutional clients. In virtually all of them, we try to build in at least some sort of protection whereby we can go to mediation and then, if possible, arbitration, rather than litigating such as those I have described.
That is why in virtually all of our hypothetical contractual examples, we would strongly recommend to our business persons that they include an ADR clause calling for confidential mediation/ arbitration to resolve any contract-related disputes, rather than risk an unpredictable adverse judge or jury verdict.
If the IMG legal department has done the “heavy lifting” in the up-front drafting of an effective ADR clause, and we know how we are going to resolve a dispute as we go forward, there will be no runaway juries or judges. Instead, by being able to participate in the selection of the decision maker and the rules by which the decision will be made, we can better predict and control the parameters within which the final result will be returned.
That is ultimately why I am a “recovering litigator.” I have many fewer sleepless nights waiting for an arbitrator or mediator to resolve my disputes, than I used to have when I was waiting for a judge or jury to dictate my client’s future. I love juries and judges, but not when they can control my company’s fate. I much prefer an experienced commercial attorney/arbitrator, selected in a process in which I have participated, telling me how to chart my company’s future course.
Hopefully, in the last analysis, I have many more arbitrators/mediators tell me that we have much the better of the dispute, and that the other side will have to pay us significant damages to resolve our dispute. But again, to use a sports betting analogy, the “over/under” on the final result is much more predictable in arbitration than it is in litigation, especially with juries.”
Peter Carfagna is the chief legal officer/general counsel and senior staff, vice president, of IMG Worldwide Inc., a leading sports management firm that represents Tiger Woods, Derek Jeter, and Peyton Manning, among others. IMG’s legal department drafts more than 6,000 contracts worldwide every year.
A different view of ADR and the mediation process is offered by Edward F. Sherman in his article ” The Impact on Litigation Strategy of Integrating Alternative Dispute Resolution into the Pretrial Process” published in the Federal Rules Decisions, October 1996 (168 F.R.D. 75):
“Despite its anti-litigation origins, ADR is rapidly becoming an integral part of the litigation process. Courts around the country are “annexing” a wide variety of ADR procedures that must be utilized before a lawsuit is allowed to proceed to trial.  This institutionalization of ADR by the courts has raised a host of objections. ADR purists are concerned that it is contrary to the quality of voluntariness which many see as essential to the effectiveness of nonbinding ADR.  There is also a concern that court-mandated ADR may coerce parties into settling without providing the safeguards that adjudication affords.  Finally, there is a suspicion that the strengths of ADR in promoting problem solving and relationship building will be undetermined by courts’ emphasis on getting cases settled and clearing their dockets. 
Reconciling the methodology, values, and objectives of ADR and trials within an integrated litigation process is no easy task. The procedural differences between a binding adjudicatory process (such as a trial) and a nonbinding facilitative process (like mediation) are considerable.  These include such basic process features as the form of presentation, the kind of evidence and argumentation permitted, the role of the decision maker or audience, and the legal effect of the outcome.  Of course, integrating ADR *77 into the litigation process does not result in a single, amalgamated proceeding, and ADR processes do not mimic a trial.  Attorneys must therefore anticipate having to participate in two very different procedures. It is difficult to engraft an ADR proceeding onto the usual pretrial process without affecting the way attorney’s investigate and prepare their cases for both the ADR and the trial proceedings. Furthermore, the act of going through an ADR process, in which evidence and arguments are presented in a rather different manner than in a trial, can not help but effect the conduct of a subsequent trial.
The integration of ADR into the trial process has been accomplished in many courts with little consideration given to how it alters the overall pretrial litigation process. Attorneys and judges need to appreciate that the insertion of ADR into pretrial procedure is not a minor addition and can have significant consequences for the entire process. Attorney strategy -as to investigating and discovering a case, taking depositions, structuring arguments, coordinating summary judgment motions, and making motions in limine to resolve evidentiary and other matters is likely to be affected by mandatory ADR. As a result, many of the traditional attorney practices and much of the conventional wisdom underlying litigation strategy need to be reexamined in light of the impact of ADR on the pretrial process.
II CONTEMPORARY MEDIATION QUESTIONS REGARDING STRATEGY OF THE MEDIATION PROCESS IN GENERAL.
From a general comment standpoint, the mediation process has been extremely successful with the conclusion of substantial amounts of litigation by compromised settlement. Even when the procedure is approached in “good faith” from all parties, the common question sometimes surfaces regarding the mediation procedure: “What limits should be placed on the mediation presentation?” This question falls into the area of mediation strategy, and the limit of such presentation or mediation exposure offers the topic of discussion and preparation for the mediation.
Regarding the topic of mediation presentation and what limits should be placed upon the Plaintiff s discussing the entire case, a new concern has arisen concerning the prospect of, certain tactics that parallel a procedure for merely “picking the Plaintiffs file.” Most lawyers operate by presenting to the opponents the strong points of their case without holding very much in reserve. This theory being that the party with authority for settlement must have a clear picture of the strengths of the case and exactly what risks might be available at the courthouse should the case go to trial with a jury verdict as an ultimate result. Many lawyers with this theory in mind have laid all their cards on the table in an attempt to present the best case in order that their opponents will actually know Plaintiff s complete case. This has been very successful in most areas and especially in medical malpractice cases.
On the other hand, there are some lawyers who come to mediation and go through the procedure with no intention of moving the case. This procedure simply utilizes the lawsuit tactics of picking the Plaintiff s file clean, finding out everything about the Plaintiff s case, with the idea of not settling the case over a certain amount of money which will probably not be acceptable to the Plaintiff. This proves to be a clear “fishing expedition” and a free look at the Plaintiffs entire file. Also, this does not comply with the true purpose of mediation and also opens the door as to questionable good faith. While this is a minority view and only experienced by a few lawyers, it is certainly one that needs to be considered from a mediation standpoint.
III QUESTIONS TO CONSIDER IN DETERMINING STRATEGY FOR MEDIATION.
A. THREE MAIN AREAS OF CONSIDERATION IN PRESENTING YOUR CASE TO YOUR OPPONENT AND THE MEDIATOR
The following categories point directly to the extent and duration of mediation presentation and exactly what should be held back in discussion, if anything.
1. Tip your hand?
3. Or just show up?
B. QUESTIONS AT HAND IN DETERMINING STRATEGY FOR MEDIATION.
1. General topic – What limit should be placed on the mediation presentation?
2. Dilemma and exposure – Best scenario vs. “Hold back”
3. Typical questions posed for mediation strategy:
(a) Tipping your hand. Complete exposure of the aspects of the case,, both positive and negative, with emphasis on principal factors, including client, facts of the case, expert witnesses and damages.
(b) Stonewall. Showing up and going through the mediation procedure, dealing general aspects of the case but still holding something back from a strategy mode. This procedure is somewhat guarded by the pace set by the Defendant or the Defendant’s representatives. It appears at this stage that something is being held in reserve, with the appropriate time for presentation being an opening in mediation or trial.
(c) Just show up. Party attends the mediation with the idea of no presentation other than the general statement about the case and with the idea of displaying no positive factor regarding the case and prospects for settlement. The problem may exist here that counsel or parties fail to obtain consent for settlement in a medical malpractice case.
The above three topics are mentioned as stages of mediation or limitations of the mediation presentation. Any of these can be altered or elevated during the mediation depending upon the evidence which has been presented or the developments of the mediation procedure itself. The main goal, of course, is to move the case by compromised settlement. In regard to the three topics, the question arises as to what actually should be considered in making a determination on the amount of exposure or issues to be discussed or presented during mediation, i.e., how much should you tell? What should be the extent of the presentation? Regarding the extent of the presentation and the duration of the presentation, the following questions arise:
1. Should something be held in reserve?
2. Should you respond with all the evidence to make a full presentation, or hold something back?
3. Do you present a full and complete picture of your case?
4. Should you proceed at the same pace as your opponent?
5. Should a main point or one of the strongest areas of the case be camouflaged to be presented at a later time or toward the end of the mediation procedure?
6. How much of my hand should I tip?
7. How is the mediation presentation paced: full, medium or zero?
8. Should you wait to see the “good faith” of the opponents before putting all cards on the table?
9. When should the stonewall program be put in place?
All of the above inquiries may come into play when considering the presentation of the case in mediation. While there is no universal answer to the three topics presented, this paper will attempt to give some type of guideline or suggested pointers on making the decision on exactly how to proceed in presenting the case in mediation. The question regarding the extent of mediation presentation again surfaces: Should you:
1. Tip your hand?
3. Or just show up?
IV. RESEARCH SOURCES FOR MEDIATION STRATEGY.
A. RESOURCES TO BE CONSIDERED IN PREPARING AND EVALUATING A CASE FOR MEDIATION.
In preparation for mediation and utilizing a program for mediation strategy, pertain factors should be considered and play an extremely important role for this procedure. Various factors can affect the extent and duration of the mediation presentation and definitely should be considered in evaluating the case for trial as well as mediation. These elements are as follows:
1. The facts of the case.
2. The status of the case – development.
(a) no suit
(b) no discovery
(c) limited discovery
(d) discovery completed
(e) trial setting
3. Exhibit A: The Client.
4. Opposing counsel
8. Insurance company representatives or claim managers
9. Defendant physician or Defendant Hospital
10. Defendant corporate representative or individual Defendant
As mentioned, the above factors play a very important role in evaluating a case for trial as well as mediation. Furthermore, the lawyer must play a very large role in determining exactly what strategy is to be used at mediation and exactly how large a presentation should be made and what should be revealed in mediation. A review of each of the elements mentioned above, singularly and collectively, clearly shows each of these areas to be considered in the evaluation process as well as the mediation process.
B. MEDIATOR INVOLVEMENT.
While the facts of the case for practical purposes cannot be changed or altered, one factor in the above list that can play one of the most vital roles in reaching a satisfactory conclusion by mediation is the mediator. The importance of the mediator and the role that the mediator plays in a successful mediation cannot be overemphasized. Many trial lawyers feel that a mediator with a proven track record or one who is also a former trial lawyer or has had courtroom experience such as a judge can best understand all aspects of the case to be mediated.
V. SPECIFIC COMMENTS ON MEDIATION.
The Gambler speaking to a young man traveling on a train late at night, deep in the whiskey:
____ “And the night got deathly quiet
And his face lost all expression,
If you’re going to play the game,
boy, you gotta learn to play it right.”
With the above factors in place and lined up for consideration, information and opinions were obtained from some of the leading mediators in Houston, Texas to provide material for the critical question: How much exposure should be made in the mediation process? What advice or suggestions regarding a full opening or a conservative approach can be made? The question presented is
Should you —
Tip your hand?
Or just show up?
A. GENERAL THOUGHTS FROM- MEDIATORS
Specific inquiries concerning mediation presentation and exposure received general responses from these mediators as it pertains to their experience in the mediation procedure. The following mediation comments were received regarding mediation and the amount of exposure which should be made in the mediation presentation:
Gay C. Brinson, Jr.
3740 Del Monte Drive
Houston, Texas 77019
“There will always be insurance companies, parties, and their lawyers who come to mediation without any desire or intent to settle except on their own misguided terms. In my experience, they soon lose their credibility with the mediator as well as the other parties. Besides long experience and very large talent, you’re undoubtedly so successful because you and your clients are perceived to be credible. In mediation, as in the courtroom, if you lose your credibility, you lose not only the battle, but the war.
As to the question: Mediation: Should you tip your hand, stonewall or just show up? None of the above. You obviously must consider the facts and circumstances of each case, but assuming you go to mediation to get your case settled, you need to present it to the opposition in its best light. To me, this does not mean that you give away the store or ‘tip your hand.’ If you ‘stonewall’ or ‘just show UP, I you won’t settle many cases.
The successful lawyers I have seen in mediation are prepared, have a realistic idea of the value of their case and present it to the other side in its best light.”
Gay C. Brinson, Jr.
John T. Golden
Hays, McConn, Rice & Pickering, P.C.
1200 Smith, Suite 400
Houston, Texas 77002
“Mediation: Should you tip your hand, stonewall, or just show up? Basically, the parties should be prepared to do any one of the above at mediation but do not prepare for the mediation with a preconceived opinion of what to do. It is generally best to at least present a good logical case if you are in doubt but certainly with the idea of not showing everything.
Foremost in making the decision, is to know your opposing counsel. This is similar to playing poker with the adage that you should always ‘know your dealer.’
Is opposing counsel one that you have experience with and know whether he is trustworthy, capable of good judgment and logic and whose client has confidence in his or her ability to properly analyze and evaluate the case; or is opposing counsel a young Turk with a 5-year defense lawyer syndrome, or an older lawyer who is known to stay hard-nosed throughout the case in an effort to impress the client how tough he is?
If opposing counsel is Rambo, you may as well show up and see if the mediator can change opposing counsel’s attitude and use psychology to defuse the problems and mitigate such conduct.
If you know the mediator well and have confidence in their ability to handle the type case involved, you may want to approach the mediator in an effort to ascertain how to go about handling a case that is being stonewalled or just showing up. A forcible mediator can often times get both sides to loosen up if they really want to move forward with negotiations.
In summary, should you as a plaintiff –
1. Tip your hand: If you ‘know your dealer, i.e. opposing counsel, knowing them to be trustworthy, capable of good judgment of logic, not thrown to be hung up on paper tiger defenses and capable of having some sympathy for plaintiff s predicament.
2. Stonewall: If relationship with defense attorney is strained, maintains the ‘5-year defense lawyer syndrome’ and therefore exchanging only information during the mediation that has come to light through discovery. This can oftentimes be tempered quite a bit with the mediator bringing the two attorneys together outside the presence of their clients and showing how progress can be made if the Allstate or State Farm complex can ‘De side-stepped.
3. Just show up: Prior Rambo tactics and/or bad faith bring about this position. Unless the mediator can litigate this attitude, each side should ask for half of the mediation fee back and head for the golf course.”
Hays, McConn, Rice & Pickering
3555 Timmons Lane
Houston, Texas 77027
“I really do not think there are as many secrets in litigation as many litigators seem to think (I can’t tell you how often parties will ask me to hold the same information in confidence from each other). The benefits of settlement to the parties usually outweigh the slight risk one might tip his hand. Grant you, my goal is settlement, not victory in trial, but I believe this is the goal of most parties. Lawyers sometimes fail to recognize the benefits to their client if they effectively use the mediation process to maximize the client’s opportunities for reasonable settlement versus the possibility of some minimal tactical advantages in trial. In keeping with the priority of the client’s goals, I believe one should take advantage of the mediation process and make every effort to obtain the best settlement offer available to the client. This is not showing weakness and it does not mean one is ‘selling out.’ Once the party has obtained the best settlement offer they can still choose not to settle if they wish.
1. Should you tip your hand? Obviously if the disclosure of this information would allow the party to cure a fatal mistake and a cure would not occur but for disclosure in mediation, I recognize such disclosure would probably not be in your client’s best interest, i.e., failure to timely designate a witness.
2. Stonewall? I can’t envision a situation where this could be in the client’s best interest. It seems shortsighted and myopic to presume one has nothing to gain from the mediation process. I truly believe, and many times have witnessed, what happens in the mediation process can change how one looks at a case and what is a reasonable settlement. I also think a frank examination of the risks of not settling can provide protection for the lawyer as well as the client. The client has been made aware of all the risks through the mediation process and is making informed decisions. This means there is less likelihood this client will second guess a decision to settle or to go to trial.
3. Or just show up? I would mention there may be an occasion when it seems highly unlikely a case can be settled, for example when a doctor refuses to consent to have his insurance company settle because he believes he can win, has enough insurance if he loses, and does not want a settlement reported to the federal DataBank or to affect his eligibility to, be approved by a managed health care plan. Even in this. situation where parties believe they are merely ‘showing up’ settlements can occur after a great understanding of the other party’s case and the interventions of the mediator.”
Levin & Kasner
11 Greenway Plaza, Suite 500
Houston, Texas 77046
“Returning now to the matters on which you have requested my direct comments, please know that I am a devoted advocate of ‘informational parity.’ It is my belief that this is the only real opportunity for the parties to hear and touch each other so as to get a real sense of what the trial atmosphere will be like, to see that the other person is either credible or not, and to come to appreciate each other’s positions, at the lay level. In short, I advocate not only full disclosure by the attorneys (with discretionary exclusions as may be appropriate), but also full participation by the parties. While one side or the other sometimes feel that true candor has not been reciprocated, I counsel erring to the side of trusting.
I also view the joint session as a mini-trial. In that sense, a well-reasoned presentation can establish a momentum which carries forward throughout the day and can significantly influence the ultimate outcome of the dialogue. Additionally, I find that the joint session can begin the healing process which, of course, is abetted by the opportunity to settle.
Attorneys who choose to secrete, stonewall, or just show up, in my experience, abuse the mediation process and ultimately do a grave disservice to their clients. Mediation presents an opportunity for the parties to become ‘judge and jury.’ In one day they can accomplish a miracle which otherwise takes months, and perhaps even years, through the traditional litigation process. I see no reason to jeopardize that opportunity in face of the expensive, emotional, time consuming and capricious system which represents the alternative (at least not without a good faith effort which begins at the joint session table).
Tips for attorneys:
1. Look directly at the decision makers when making your joint session presentation. Good eye contact is essential.
2. Have your client look at the decision makers as well, especially while you are speaking.
3. Instruct your client to listen actively as the attorney or opposing party speaks.
4. Dress appropriately.
5. Use warmth, friendliness, credibility and honesty in making your address. Always remember that it is much easier to catch flies with honey than with vinegar. This is particularly true with doctors. Not only are they proud by nature, they can stop the proceeding in his tracks by simply withholding consent.
6. Do not threaten. Be calm and appeal to reason.
7. Be familiar and comfortable with the facts and law, but do not make an appellate argument. Make it ‘folksy’ where possible.
8. Keep your total presentation to a reasonable amount of time.
In short, mediation is the day for compassion, empathy and respect. The peace tent concept works only when the attorneys and parties want it to work. Many plaintiff s attorneys have learned how to capture the legislative intent (‘to peacefully resolve your differences’) and use it fully to the advantage of his clients. After all, the goal, from plaintiff s perspective, is to strategize as to how best to induce defendant to put up every dollar it will spend to settle the case without a fight. Plaintiff always retains the final right to say ‘no.’ In short, the risks of being candid and forthright (‘tipping your hand’) are far outweighed by the benefits which can, and often are, achieved through an open, honest and revealing mediation process.”
Alan F. Levin
Levin & Kasner
Gary V. McGowan
One Riverway Drive
Houston, Texas 77056
(713) 552-1859 fax
“Presumably, we are talking about cases where there is a hand to ‘tip.’ As you know, in many cases, the, discovery has been so thorough that virtually no secrets remain. What to do, however, when you have identified a witness that the other side has not interviewed or deposed (or did not ask the right question in deposition), a ‘needle in the haystack’ document which you believe the other side has not focused upon, or disclosed argument/theory regarding known evidence? In this situation there is always a tension between your desire to maintain an element of surprise if the case does not settle (which argues in favor of nondisclosure). It is important to remember that your choices are not limited to disclosure or nondisclosure. There are great degrees of disclosure, ranging from very general to very specific. For example, in a case of a witness, you might have the following choices:
(1) No disclosure at all.
2. You authorize the mediator to disclose only that you have ‘evidence of ‘ without saying anything about the source of the evidence.
(3) You authorize the mediator to disclose that you have a ‘document evidencing ___________,’ without disclosing the document’s source, date, or author.
(4) You authorize the mediator to disclose that you have a ‘document written by _________, evidencing ________’ without otherwise identifying the document.
(5) You authorize the mediator to disclose the document.
Consult with the mediator about the issue. Many mediators can offer helpful advice about what to do. Remember that the mediator has the ‘read’ of the other room, and he or she may be able to (a) give you some comfort level regarding the bona fides of your opponent and (b) the extent to which the disclosure may, impact the negotiations.
Sometimes, parties will resolve the dilemma by holding onto a few pieces of ‘secret’ ‘ evidence until the negotiation enters a settlement mode. When they see that settlement appears to be a possibility, they will disclose the ‘secret’ information in order to maximize the result for their client. Of course, they run the risk that settlement will never seem possible because they have hidden damaging evidence. If your opponent does not know about the evidence, it will not be a factor in his settlement evaluation.
Please note one exception to all of the above. In some cases, a party may have a procedural trap for the other side. For example, suppose that counsel for the defendant is quite proud of a witness but has failed to identify that witness in his interrogatory answers. If it is not too late to supplement his answers, this procedural defect is curable. If plaintiffs counsel discloses the omission, it will have no impact on settlement negotiations because it can easily be cured.
One final note. You would be surprised how many times a party thinks that it has a ‘secret’ when in fact it is not a secret.”
Gary V. McGowan
Susan Soussan, Mediator
1330 Post Oak Blvd., Suite 2800
Houston, Texas 770056
(713) 961-2886 fax
“I wholeheartedly agree with you that the purpose of mediation is settlement; therefore, the opposing side should have a clear picture of the strengths of your case and the risks at the courthouse. Unless there has been discovery abuse or, prior to mediation, you have been told that the defendant will never settle the case under any circumstances and is only attending the mediation because the court has ordered all parties to attend, I believe the cards should be laid on the table.
It has been my experience that once the parties have reached mediation, all attend with the intent to settle the case. Clearly, there are those situations where a company or defendant (or a plaintiff) has already assessed the settlement value of the case and in no way will match or come close to matching the other sides evaluation; therefore, one needs to think twice about tipping their hand. In these instances, if you have trust in your mediator, which is absolutely critical in all mediations, you may want to tell the mediator certain facts in order for the mediator to help determine whether tipping your hand would be useful. Only the mediator will truly know the thoughts of the defendant in that she has listened to the defendant in private, which may be entirely different from the posturing used. in the joint session. This is when a ‘trusted’ mediator’s opinion can be very helpful. I highly recommend in these instances that you still maintain control over when the mediator should disclose information that you have not disclosed in the joint session.
It has been my experience that surveillance tapes are generally not discussed during the early part of mediation; however, once they are finally disclosed, the case tends to resolve. Other information that I have encouraged parties to step forward with are witness statements. These witnesses have not been disposed yet but offer critical testimony to the case. Only if these statements are disclosed can the par-ties see additional information which is critical to the evaluation of the lawsuit.
Mediation has been around since 1989. It is my experience that insurance companies and defendants, especially those which are not court ordered, attend the mediation with the intention to settle the case. Again, their evaluation of the case may be different from the plaintiffs; but, nevertheless, they are at mediation to attempt a settlement. I have not experienced the ‘free look at the plaintiffs entire file’ in a very long time. If that is the case, generally these are court ordered mediations; and, one can learn early on in the process that the defendants have no intention to settle the case.
In over 1,400 cases, I have yet to see a situation where the plaintiff ‘tipped his hand,’ and it did not work to his advantage or worked to his disadvantage if the case did not settle.”
Susan S. Soussan
50 Briar Hollow Lane
Houston, Texas 77027
“The title of the topic to be presented does indeed present a dilemma. All competent trial lawyers will recognize there is ‘no either or’ in the trial of a case, and that even though there may be game plan A and B, the good trial lawyer is always ready and willing to improvise and change trial strategy.
Mediation in this respect is no different than trial. One must know the ponies, the jockeys and the speed of the track before putting up money and taking chances. Consequently, all good lawyers consider the facts of their case, opposing counsel, venues and jury makeup, the judge who will try the case, &,id will have undergone an in depth mediation analysis before considering answers to the questions posed.
To ‘just show up’ contemplates that one has prepared for mediation. How does one prepare for mediation? By remembering that the process requires getting one’s ducks in a row before scheduling the mediation. Preparation for the mediation precedes the style of negotiation to be utilized. Plaintiffs and defendant’s attorney would do well to look at all of the following before scheduling and before deciding on the questions that are the topic of this discussion.
Should you tip your hand?: When you have aces, straights and flushes, are you reluctant to show your hand? I don’t think so. The answer to the question depends on the strengths and/or weaknesses of your case. Each case has its own life and each case should be negotiated in mediation on its own four comers. There may be a time when you should tip your hand. When? When you gain some advantage by doing so. If your opponent has ‘stonewalled’ all day, do you tip your hand? If you have aces, straights and flushes, why not? You may break through the stonewall. Two pair, maybe not. Some lawyers like to overpower their adversaries, and will show four queens, and defy their opponent to show they are holding four cowboys. The point is that each case is different and will dictate how much of it you show, and also has a lot to do with individual negotiation styles.
Should you stonewall?: Rarely, if ever, can the plaintiff afford to stonewall. What is to be gained by the plaintiff stonewalling? A zero offer or no offer! What is to gain? If the defendant stonewalls and plaintiff has a good case, then plaintiff can reasonably afford to give truth to the maxim that for each action there is an equal opposite reaction. If the plaintiff does not have a good case and needs to settle his case, then what is the purpose of stonewalling?
It may be a good time to stonewall when it is your perception that your opponent is using the process as a fishing expedition to get a look at your case, with no intention of settling; however, if your case doesn’t warrant stonewalling, why do it?
In conclusion, you tip your hand when it is beneficial to do so. Stonewalling, as a general rule, does not get the parties closer to settlement but rather may serve as an impediment to further and/or future negotiations to the extent that it polarizes the parties. Just show up prepared to mediate and listen, really listen to what is being said, in order to learn where they are coming from and to help you modify your negotiation style and skills to conform with the mediation at hand.”
Gus J. Zgourides
All mediators agree that the fundamental element of a successful mediation with a satisfactory settlement, especially in a medical malpractice case, is total preparation of the case for mediation. Counsel should not only know and have committed the entire case from a factual standpoint but also understand the law as it applies to this particular case. The positive and negative aspects of the case should be well understood with a suitable reply to all opponents arguments. A well-planned presentation should include the clients, charts, photographs, documented evidence, expert opinions, and deposition highlights. Mediation presentation should be planned, similar to an opening statement. All the areas should be covered with emphasis on Exhibit A – The Client, the expert witness’s opinion, and a clear presentation of damages injury verdict range. Understanding every aspect of the case with total preparation is 44a must” for a successful mediation. This especially holds true with the very rigid requirements for expert witnesses present in medical malpractice cases.
I. Brief Statement of Issues and Positions
A. Include a factual summary
B. If the sequence of events is essential (almost always in medical negligence cases), include a chronology of events. Even if the case does not resolve, such chronology will be helpful in trial.
C. What are the legal issues in dispute?
D. What is your position on such legal issues?
E. What are the factual issues in dispute?
F. What is your position on these factual issues?
II. Copies of Current, Live Pleadings
A. Include only the most recent amended affirmative and defensive pleadings.
A. Include, subject to confidentiality, pleadings that may be filed if the matter is not resolved; i.e., a motion for summary judgment.
A. If a motion for summary judgement, a brief in support of such motion, and/or an opposing motion and brief are already on file, include such pleadings in this section.
III. Pertinent Appellate Decisions
A. Those decisions most supportive of your position.
A. Those decisions that oppose your position, to whatever degree.
A. In cases in which a legal point has not been finally resolved or there are conflicting opinions, include the following:
1. Helpful law review articles
2. Recent seminar articles.
Opinions from other jurisdictions.
Critical Documentary Evidence (this will vary from case to case)
A. The contract or correspondence that creates an agreement.
B. Medical bills (essential in a personal injury (PI) mediation).
C. Physicians’ reports or medical records (PI).
D. Reports regarding future medical expenses and treatment (PI).
E. Lost wage statements (PI).
F. Report on future lost earnings and possible employment opportunities or lack thereof (PI).
G. A left expectancy table (PI).
H. Reports from treating psychiatrists, psychologists, counselors, etc.
I. Economist reports.
J. Excerpts from critical expert/witness reports or depositions.
K. A chronology.
L. Critical photographs.
M. Any models, charts, diagrams, etc.
N. “Day in the Life” videos.
O. Curriculum vitae for important experts.
P. Invoices that support alleged damages.
Q. Time sheets, report summaries, and the like that support attorneys’ fees.
R. Excerpts from responses to interrogatories, requests for production, or requests for admissions.
V. Negotiation History
A. Outline the series of demands and offers.
B. Indicate clearly which party made the last bid.
C. Include any history of any informal negotiations that have not resulted in a specific proposal.
D. Include your best educated guess as to what the other side might be willing to pay or take and why you think so.
VI. Objective Strength/Weakness Analysis
A. From a factual perspective, outline your strengths and weaknesses. For example, do your witnesses made good, credible presentations? Or do your witnesses testify poorly? Are they then subject to rigorous cross-examination? Do you have a strong expert? What about the other side’s witnesses?
B. From a legal perspective, what are your strengths and weaknesses? What potential legal problems do you have; i.d., limitations, causation, immunity, etc.
C. Does the venue play any part in your assessment of strengths and weaknesses? Are juries liberal? Conservative? What is the orientation of the judge?
D. How quickly will your case come to trial?
E. Is an appeal possible, likely, or certain?
F. Has the other side committed a procedural blunder?
G. Insurance coverage problems.
VII. Subjective Factors
A. Do the parties dislike each other intensely? Why?
B. Did the parties, prior to the dispute, enjoy a positive relationship? Why and on what basis?
C. Have any of the parties developed a personality problem with any of the counsel? Why?
D. Is there a personality problem between counsel. Why?
E. What is the negotiating style of your client? The other side?
F. What are your client’s non-monetary interests and needs?
G. What are the sensitive, sore spot issues? Why?
H. Does your client have unrealistic expectations? The other side? Why?
I. Are there political, personal, or emotional issues fueling this dispute?
J. Why do you think settlement at mediation is in your client’s interests? The other side’s interests?
You will find from your review of specific aspects of the pre-mediation submission that preparation for mediation is as essential as preparation for trial. The lawyer’s role (that is the mediation advocate’s role) is essential. Because of the absolute need for preparation, counsel should “feel like a lawyer” as much in the mediation setting as at the courthouse.
As many legal scholars and trial lawyers agree:: Mediation is an identifiable process and lawyers play a valuable role in the process, and by effective representation can help the client in the mediation setting. You will need to. By the end of this decade, many predict at least half of 50% of filed cases will receive mediation treatment. No longer is there a debate as to whether mediation “works.” A lawyer if he is to survive, must know the process and prepare for it. Mediation: A Texas Practice Guide, Chapter 5, Pre-Mediation Submissions, Pages 56-60, Eric Galton.
D. CLIENT PREPARATION
In order for trial counsel to be able to make decisions on exposure, client preparation becomes a very important factor. The client that understands and appreciates the total mediation procedure and the mediator’s role will be in a better position and more comfortable in moving toward a final decision.
Eric Galton, in his treaties, Mediation, a Texas Practice Guide sets forth the following check list for client preparation for mediation:
1. Who the mediator is, the mediator’s background, and the mediator’s practice experience.
2. The personality of the mediator.
3. Where and when the mediation will be held.
4. Length of mediation.
5. Who will be attending the mediation and for what purpose.
6. The mediator’s role. Include the following:
(a) The mediator is impartial/neutral and will remain so throughout.
(b) The mediator is not the judge or jury and will not render a decision or judgment.
(c) The mediator is attempting to facilitate a discussion geared towards a final resolution.
(d) Mediation is binding only if the parties reach a final agreement. If not, the parties proceed with the litigation without jeopardy.
(e) The mediation, by statute or written agreement, is a confidential proceeding.
(f) The mediator, because of confidentiality, may never be a witness;
(g) The mediator will play devil’s advocate in separate caucus and will have the parties identify their strengths and weaknesses.
7. The mediation process. In this regard, explain and outline the following:
(a) The mediator’s introduction.
(b) The lawyers’ opening statement.
(c) The initial separate caucus.
(d) Subsequent caucuses.
(e) Lawyer caucuses.
(f) Subsequent collaborative sessions.
(g) The memorandum of agreement.
8. The lawyer’s role at mediation. Include the following:
(a) Lawyer’s role is different than their role will be at trial.
(b) Lawyer will not be objecting to evidence.
(c) Lawyer will not be putting on their full case or even a large part of their case.
(d) Lawyer will present an opening statement, which will be aimed at getting a favorable resolution for their client.
(e) Lawyer will assist their client and the mediator with the negotiations.
(f) Lawyer will participate in caucus in an objective strength/weakness analysis.
(g) Lawyer will listen to what is said at mediation for purposes of any re-evaluation.
(h) Lawyer will talk openly and candidly with the mediator in caucus.
(i) Lawyer will make all decisions as to what is disclosed at mediation.
(j) Lawyer will understand the dispute belongs to the client.
(k) Lawyer will permit the client to make the final decision, subject to their advice and counsel.
(l) A lawyer’s role, by its very nature, will be much more conciliatory than it would be a trial.
(m) Lawyer may express understanding or empathy with the other side in order to effectuate a positive resolution. Such understanding does not mean agreement and lawyer is are not selling out their client.
(n) If a resolution is reached, lawyer will assist with the preparation of the memorandum of agreement.
(o) Lawyer may choose to avoid sensitive issues that may adversely affect the chances of resolution.
(p) A lawyer’s approach may well be different at trial if a resolution is not reached.
(q) Lawyer will be respectful towards the mediator and the process.
9. The client’s role at mediation. Include the following:
(a) The client is there to listen.
(b) The client is there to evaluate and re-evaluate his case.
(c) The client is there to participate directly in the negotiations and discussions.
(d) At the request of the mediator, the client may be asked to make a statement in the collective session. If so, the client should prepare his remarks and express his feelings, but attempt to do so in the most constructive fashion.
(e) In separate caucus and because of the confidentiality of the process, the client should speak freely and openly to the mediator.
(f) The client should expect and want the mediator to play devil’s advocate in separate caucus. The client should desire an objective review and analysis and not consider it to be a breach of neutrality.
(g) If an agreement is reached, a memorandum of agreement that will be reviewed by the client will be prepared and executed.
(h) The client should enter the mediation process with an open mind and give the process a chance to work.
Client preparation for mediation that covers these topics ensures several things. First, the client will be more comfortable with the mediation process. Second, the client will understand, appreciate, and be more comfortable with the mediator’s role. Third, because the client understands the process, the client will be a better, more helpful participant. Finally, a case is more likely to resolve if the client is fully and completely prepared.
While all lawyers may not agree, mediation has nevertheless established a very firm foothold in resolving cases in our legal system today. Many trial courts order mediation and make this practice a required procedure before trial.
The debate will continue on whether a full presentation of the plaintiff’s case results in “tipping their hand” or simply making the very best last presentation of the case which can be a strong factor in a successful mediation settlement. This paper does not supply the answer to this question regarding the answer of this debate.
As one mediator expressed, regarding the question of “Should you tip your hand, stonewall, or just show up?” – – Counsel should not be totally prepared in all aspects of the case, but from a strategy standpoint – – know the jockey, horses and speed of the track, trial counsel should therefore be aware of facts, opponent, carrier and the mediator and hopefully be in a position to make this decision.
Finally, with the various areas to be considered, including total preparation together with the opinions of veteran mediators discussed herein, the answer to the title question, “Should you tip your hand, stonewall, or just show up?” may be found in the gut feeling of the experienced trial lawyer.
As The Gamble stated: ____ “You got to know when to hold ’em,
Know when to fold ’em,
Know when to walk away,
And know when to run.” ____
____ “And the night got deathly quiet,
His face lost all expression. He said
If you’re going to play the game, boy,
You gotta learn to play it right.”
Kenny Rogers – The Gambler
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Blumberg, Settlement Through Mediation, CTLA Forum, April 1994, p. 13
Brutsche Mediation Cross-Examined, Business Litigation Newsletter (May 1989)
Carfagna, Show Me the Money, 57-APR Disp. Resol. J.9
Carrington, ADR and Future Adjudication: A Primer On Dispute Resolution, International Society of Barristers Quarterly, January 4, 1996.
Dallas, How to Select a Mediator, The Advocate, Dec. 1994, p. 220
Edelman, Partnering: Paving the Way to Disl2utes Avoidance, The Punch List, June 1993, p. 1
Evans, Arbitration, Choice of Law and Other Contract Provisions, Business Disputes Through Channels of Distribution, May 27, 1994
Evans, The Center For Legal Responsibility; Preparing Tomorrow’s Lawyer to Meet Business’ Needs, Corporate Counsel Review, pg. 3-28
Faulkner, Using Mediation: An Attorney’s Guide, Texas Lawyers Forum (Vol. 25, No. 1, 199 1)
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Galton, Building an ADR Practice, The Brief, Fall 1993, p. 56
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Haig, How Clients Can Use Federal court ADR Methods to Achieve Better Results, Trial Diplomacy Journal, 1994, pg. 185-192
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Lawler and Bonham, Alternative Dispute Resolution: When Is It Right for Your Client?, Trial Diplomacy Journal, 1995, pg. 39-41
Lambros, The Summary Jury Trial: An Effective Aid to Settlement, Judicature, July-August 1993, p. 6
Macturk, Confidentiality in Mediation: The Best Protection Has Exceptions, American Journal of Trial Advocacy (Vol. 19:411)
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See Mary P. Treathart, In Harm’s Way? Family mediation and the Role of the Attorney Advocate, 23 Golden Gate U.L.Rev. 717, 761 (1993); G. Thomas Eisele, Mandatory v. Non-Mandatory Court-Annexed ADR, Address at Harvard Law School (Apr. 19, 1991), in STEPHEN B. GOLDBERG, FRANK E.A. SANDER, & NANCY H. ROGERS, DISPUTE RESOLUTION: NEGOTIATION, MEDIATION, AND OTHER PROCESSES 268 (2d ed. 1992)(stating that parties will voluntarily elect mediation if it really will be useful).
See Simon Roberts, Alternative Dispute Resolution and Civil Justice: An Unresolved Relationship, 56 Mod.L.Rev. 452, 462 (1993)(noting that the lack of procedural safeguards carries with it the risk of coercion and manipulation of weaker parties by stronger ones and of both sides by the mediator).
See Carrie Menkel-Meadow, Pursuing Settlement in an Adversary Culture: A tale of Innovation Co-Opted or ‘The Law of ADR,’ 19 Fla.St.U.L.Rev. 1,33 (1991)(discussing how the efficacy of ADR as a challenge to the status quo has been blunted by the very forces that it was suppose to change).
‘ADR’ is used in this Article to refer to nonbinding alternative dispute resolution processes that utilize the intervention of third-party neutrals to assist the parties in achieving settlement. A number of such processes have emerged in recent years, but the ones that are most often court-annexed are mediation, judicial settlement conference, early neutral evaluation (ENE), court-annexed arbitration, mini-trial, and summary jury trial. These processes differ as to such features as procedural formality, role of the neutral party, and time when invoked. See infra note 9, 29. However, they share the common objective of aiding the parties to make an objective evaluation of their cases, to appreciate the position and interests of the other side, and to explore mutually acceptable solutions.
E.g., mediation is a dialogue between the parties (and usually their attorneys) facilitated by a mediator in which, without rules governing the manner of presentation, each side is given an opportunity to states its view of the dispute and to respond to what is said by the other side. A judicial settlement conference is an informal meeting with a judge to discuss the case, again without rules as to manner of presentation. ENE is a meeting between the parties and a neutral party (usually a lawyer) in which each side is given an opportunity to make a narrative presentation of its case after which the neutral party issues a nonbinding evaluation. Court-annexed arbitration is an informal presentation of each side’s case, without specific rules governing the manner of presentation, before an arbitrator (or three arbitrators under federal court programs) who renders a judgement that can be appealed de novo. A mini-trial is an abbreviated presentation of summaries of the evidence in a trial-type format before the representatives of the parties having settlement authority, presided over by a neutral advisor who may give his or her opinion on various matters if asked and who facilitates settlement discussions. A summary jury trial is an abbreviated trial held before a judge and jury in a courtroom in which summaries of evidence are presented in a trial format and the jury renders a nonbinding verdict at end. See John S. Murray, Alan Scott Rau & Edward F. Sherman, Processes of Dispute Resolution: The Role of Lawyers 436-76 (2 nd ed. 1996).
For a discussion of possible models, or visions, of the court system after integration of ADR, see Robert A. Baruch Bush, Alternative Futures: Imagining How ADR May Affect the Court System in Coming Decades, 15 Rev.Litig. 455 (1996).