Your first meeting with the mediator is important.  It is crucial for establishing your credibility and outlook on the case.  Everything you say and do must reflect your being convincing, credible, and conservative. 

Let the mediator talk first.  Don’t be quick to justify your position or put down plaintiff’s position.  This is a time to first listen.  If the mediator asks you a question, answer it succinctly and then ask him one to get him talking.  Find out as much as possible about the plaintiff’s position before discussing your position.

The mediator will highlight plaintiff’s case to get you into the compromising mood.  Build credibility by giving plaintiff her due on issues and evidence that go her way.  Retain credibility by avoiding trying to pass off a weak argument as having a real effect on value.

Make a strong first impression on the mediator.  Without completely rehashing what was said at the joint session, state your arguments on the issues and evidence convincingly.  Show conviction in your position.  Draw upon your prior settlement and trial successes for examples.

Don’t start with a number.  Start with conveying your conservative value of the case without expressing any specific numbers.  Talk about the evidence and issues, and how you see the jury receiving them.  If you have serious issues with liability and damages, it implies you have a conservative view of the case value. 

It is important to convey this conservative message early for two reasons.  First, so that your low opening offer will be considered a reasonable offer and not just a low number picked to get things started.  Second, you will have provided the mediator with sound reasoning to convey with the offer to justify it. 

Don’t threaten to take the case to trial; save that for later.  You do, however, want to leave the impression with the mediator that you are not afraid to try the case.  You can simply do this by talking about trial strategies, the entering of evidence, etc.  This is a much more subtle way to convey the idea, and it carries more weight.

One of your primary goals for this first meeting is to quickly and effectively plant the seed in the mediator’s mind that plaintiff will have to shift her expectations considerably downward in order to get this case settled.  As the mediator leaves the room, if the expression on his face suggests he is thinking, “This is going to be a tough one to settle”, you have done a good job.

Robert J. Conover

30 Years in Claims and Litigation Management

Independent Mediation Negotiator  &  Claims Representative