Credibility is the cornerstone for developing leverage, thus you must build it where you can and retain it once you have it. To effectively build credibility with the plaintiff’s team you must understand them, and take them in as they see themselves.  If you are not inclined to fully evaluate the players, you cannot convincingly empathize, show sympathy, or make concessions, which will damage your credibility.  It takes extra effort to keenly evaluate people and may sometimes seem unnecessary, but you are accomplishing a great deal by doing it. 

When evaluating the plaintiff, put yourself in her shoes.  Think what life would be like to live with the physical or psychological limitations expressed by plaintiff.  It is this type of empathy you must have in order to have credibility with the plaintiff and plaintiff’s counsel. Empathy is not a sign of weakness, and it does not mean you are buying into plaintiff’s exaggerated injuries.  It simply means that you are understanding her story, to the point that you can, or nearly can, feel the resultant emotions.  Showing empathy gives plaintiff the sense she is being understood.  Empathy builds respect.  Empathy, and the resultant better understanding of plaintiff, will help you formulate a negotiation strategy by giving you insight into her emotions and motivations.

You only have to empathize; you don’t have to agree.  Don’t, however, show your disagreement verbally or non-verbally at the joint session unless it is clearly appropriate to do so.  It is appropriate when it involves a significant issue, you have a sound argument, and you need plaintiff to hear it directly and see that you are confident about it.  Otherwise, disagreeing now is too easily mistaken for failure to understand.

Consider in advance which issues you want to take head-on, and which can wait.  Issues such as loss of consortium or future medical needs can sometimes be touchy or emotional topics.  Use your instincts to guide you.  If it is not an emotional topic, get it out in the open and let plaintiff know you are taking serious issue with it.  But, if it is emotional and does not have to be taken head-on, empathize for now and disagree later.  Use the mediator as a tool for conveying emotionally charged arguments.  Through him the weight of your argument will more likely be understood and felt by the other side.

The point is, don’t be anxious to convey every disagreement to plaintiff at the joint session.  If it is not an issue you have to take head-on, first build credibility, then disagree.  After establishing credibility, your explanations of disagreement will carry more weight, allowing you to more effectively instill doubt into plaintiff’s case.

Robert J. Conover

30 Years in Claims and Litigation Management

Independent Mediation Negotiator  &  Claims Representative

805/473-1206  -- Central & Northern California  --  rjcono@aol.com