Episode 5: Handling Your First MediationLast updated on: August 28, 2020
If you are a new attorney and looking for answers to the what, when, where, and why on mediations, the Zinda Law Group team is back with an insightful educational digest. Their professional wisdom fills the knowledge gap left by law school curriculums across the country coupled with valuable tips from the field. For fresh faced attorneys, this podcast will be the solid foundation they need to walk in and out of their first mediation – whether the case reaches resolution or not.
On today’s podcast:
● What is a mediation?
● Who is a mediator?
● When and when not to mediate?
● What are the three objectives of a mediation as an attorney?
● Who should attend a mediation?
● How to prepare a client
● The nuts and bolts of a resolution
What is a mediation?
It is an “opportunity to get your case in front of a neutral party”, Personal Injury Attorney, Christina Hagen explains.
Essentially, it is an information gathering process. The ultimate aim is to reach a resolution between the parties with a guaranteed outcome. No jury, no judge, just an informal setting with a neutral pair of experienced ears to listen – and, well, mediate.
Both sides, the plaintiff and their attorney and the defendant and their attorney, will present their case to the mediator and see if a settlement can be reached – or not, as the outcome may often be.
The mediator and their powers
If it is an informal affair and the mediator is not a judge, then what powers do they have and what knowledge can they offer to help resolve my case?
Often mediators are ex-judges with a wealth of experience on the law and how juries tend to sway when presented with particular sets of evidence. However, that ‘ex’ is the operative word when it comes to their powers.
“The only real power they have is that they have to be the ones to declare it as an impasse for the day”, Neil Solomon, Senior Attorney, makes clear.
As a general rule, the Zinda Law Group attorneys advise that a pre-suit mediation is ‘typically’ an unwise move since the opposition may be trying to ‘test your metal’ and see if they can get off relatively cheap.
Rather, mediation is usually most sought-after just before expert designation – in other words, before the real money comes into play.
“It’s most important to know the value of your case before you decide whether you want to mediate or not,” advises Christina.
Unlike the mediator, as an attorney, you have three objectives.
Objective number one, gather information and identify what holes the opposition has spotted in your case. Objective number two, estimate what the opposition has valued your case to be – i.e. how much are they willing to pay.
And then, only if you’ve achieved objective number one and two will you aim to resolve the case as your third and final mediation objective – otherwise, feel free to walk out if no one is meeting you halfway.
Preparing your client
Most importantly, the Zinda Law Group says preparing your client to ‘ease their nerves’ is key. Give them a run down on what a mediation is, what it isn’t, if your client will speak, and crucially, that the first offer made should be taken with a pinch of salt – however insulting it may be.
There are a lot of emotions that can come into these mediations, especially if it is a wrongful death or catastrophic injury case. “It’s important to prepare your client mentally for what the day is going to be like,” Jack advises.