Let the mediator talk first each time he enters your caucus room.  You will learn a great deal more about plaintiff and the mediator if you let him express himself immediately upon entering the room.  Refrain from asking questions or embarking on social talk.  Since the mediator has just come from meeting with the plaintiff, he will more likely reflect the plaintiff’s emotions and arguments in the terms and style expressed by the plaintiff.  Taking in these nuances can be extremely helpful in analyzing a further negotiation strategy.  You’ve got plenty of time for questions and small talk after you’ve rung out the mediator.

Avoid asking the mediator his evaluation of your case.  His evaluation will likely be higher than yours, but below plaintiff’s, so it will not tell you much anyway.  You don’t want the mediator to be sub-consciously committed to a higher figure than where you want to go.  Keep the negotiation pure by keeping the mediator out of a committed evaluation.  He will likely have made such an evaluation already on his own, which can be difficult enough to deal with when he is silent about it.

In the early stages of the negotiations a good mediator will simply be that of a facilitator.  He will be feeling out the parties for a sense of where they are going, and conveying numbers back and forth without much evaluation.  Allow him to do this for a couple of exchanges without asking his opinion about anything.  Then, you can seek his opinion about tactics, weight of evidence, jury interpretation, etc., when you feel it advantageous to do so.

Get the mediator’s opinion about the plaintiff’s case, not yours.  He has spent time with the plaintiff in a non-adversarial setting and may have a better sense of her and where she is vulnerable.  If he is not inclined to share his observations, sometimes some well- put questions by you can be enough for you to read between the lines and get the information you need.

Most mediators are seasoned attorneys who have attended or performed hundreds of mediations and know very well how and when to approach plaintiff with the defense’s arguments.  Sometimes, however, because of something you have gleaned about the plaintiff from her words, appearance, or body language, you believe that a specific approach or specific wording to an argument may be appropriate.  Don’t hesitate to suggest your idea to the mediator.  Mediators are often grateful for suggestions, but be careful you don’t come across as trying to tell him how to do his job.  If in doubt, let the mediator use his own approach until it proves ineffective.

Robert J. Conover

30 Years in Claims and Litigation Management

Independent Mediation Negotiator  &  Claims Representative