(This is my article published in the June 3, 2013 edition of ‘The Recorder’)
Leveraging Mediations Into Good Settlements
Jury trials keep getting more expensive. Civil courtrooms have been sacrificed to budget cuts throughout California. For either reason, converting mediations into advantageous settlements is increasingly crucial for any successful practice.
But modern litigators need new tools to make that happen. Too often currently, mediation is little more than a rehash of the same arguments each party has been advancing to the other for years. The chief emotion is often the conviction that “a jury will love” one’s witnesses or facts. These encounters cost time and money to prepare and conduct, yet produce relatively few satisfying settlements.
Needed: Mindshift From “We’re Right” to “What Will Jurors Really Do”
For the two or more years already spent on the case, counsel has an attitude of “I’m right, and here is all my supporting data and law.” That is a valid and necessary mindset while executing discovery and working up one’s arguments for motions and trial. However, it is a poor mentality for resolving a case with an opponent who has the same belief about his or her case. Indeed, the value of this mindset plummets the moment that arguments for summary judgment or adjudication are submitted to the judge.
It is at that instant that it no longer matters who is “right,” or who “should” win. The most important question just became what jurors would do with the case if they were to receive it—because the only reason to agree to a settlement is that it beats or equals the answer to that question.
The only cure to breaking out of one’s own belief bubble is valid information about layperson reaction to the case. Not supposition. Not conjecture. Real information. This usually means focus group research – with qualified strangers, conducted with the principles of social science, not just polling one’s neighbors, staff, family, restaurant servers or bartenders. And information is not the same as data; e.g., people say that they don’t like negative political advertising, yet it is the only thing that works. Likewise, just because mock jurors might say they like or dislike X about the case, that does not mean they would vote for or against the side offering X. Their decision paths must actually be drawn out and analyzed.
Once counsel has gained some valid insight into layperson thinking about the case, the next vital ingredient to good settlement are some shared perceptions about that layperson insight. Then and only then is there the opportunity for a satisfying settlement well short of trial. One can simultaneously love one’s client or case and see the hurdles that laypeople might have in voting one’s way.
There are two proven, powerful approaches that bring this shared reality into settlement talks, and convert mediations into the best achievable results for your client. They are: using scientific research in your presentation to the mediator and the other side, and collaborating with the other side and a neutral to integrate a mock jury trial right into the mediation where all sides can see.
1. Using Research Data in Mediation : Reality Therapy
The first tool is the use of focus group results in your mediations. Conducting a proper, scientifically valid focus group is essential for preparing for trial in any significant case. It is the only valid way to attempt to forecast what real jurors will do with the case. There is a method for presenting this data at mediation that is most effective for equipping the mediator with talking points about “what a jury will do,” as well as equipping opposing counsel with better talking points to help their client understand why settlement is going to have to be closer to your position than theirs.
First, the trial consultant who ran the research project appears at the mediation with counsel and gives a clear explanation of the methodology of the research (including how the mock jurors were recruited) and a near-complete recap of the arguments and issues that were given to the mock jurors, paying special attention to how their case was presented. Very little will shut down the other side’s listening capacity faster than their judgment that their argument was not represented in a fair or persuasive way.
Indeed, the better trial consultants deliberately stack focus groups against their own side. It is advantageous to share that and the reasons for it with the other side.
Once the foundation for validity is laid down, the consultant should then be clear that these data are not intended to predict a specific outcome at trial, but do show the decision paths that laypeople will take with this case. At this time, the consultant should reveal some of the findings, share some of the strengths and weaknesses that the laypeople noted about both sides, and to some extent, share the layperson’s perspective—e.g., “What does a handshake mean anymore?” or “So did he think that if there’s enough money in play, then it’s OK to cheat your partner?”
The other side should be invited to ask any questions about the research methodology or the findings; if they are not satisfied that it was valid research, then this is wasted time. A shrewd attorney will ask the consultant questions that will test the outer limits of the research favorable to the side that is presenting this data. A skilled consultant will know how to handle those without giving everything away.
Full disclosure: the odds are microscopic or less that the other side will cave on the day of the mediation. However, broad experience has been that approximately one week later, the other side agrees to a settlement much closer to the terms of the side offering the reality-based forecast of jury decisionmaking.
2. The Mock Jury Trial Meets Mediation: Private Trial on Your Terms
Imagine hearing from a jury during mediation. That is the core idea of the second modern tool: joining with the other party, the mediator, and a consultant to orchestrate a mock trial focus group as part of the mediation process.
Both sets of lawyers present a condensed version of the case to a mock jury with the mediator present. After the jury deliberates – while being observed by all parties and the mediator – the mediator can then speak to the parties individually and jointly about his or her observations. The consultant might also speak.
It is a high-octane reality injection into the settlement process, cutting many court days down to potentially one, hearing the deliberations of up to three jury panels instead of just the one at trial, and creating a shared reality for all parties and the mediator regarding what laypeople will really do with the case.
This “mock trial mediation” is greatly customizable. For instance, the parties can agree on the exact scope of what will be presented to the mock jurors—which areas of evidence, which witnesses can be referred to, agreed upon evidentiary rulings, and so on. The sides can choose the length of the presentations, whether one day or more. The parties decide how many panels of mock jurors to use. And, of course, the biggest point to be agreed upon: might the results of this process be considered final? Might the results at least be final as to liability? If not, might the results be final as to certain elements of damages?
The most common expressed fear for trial counsel considering either of these tools for leveraging mediation is that the opponent will hear something helpful to their side, that there is risk. In trying to get counsel to let go of some fear so that we can make better strategic choices, I point out that the other side already knows our biggest weaknesses; indeed, they have a word for them, their “strengths.” The next thing I point out is that if we acknowledge some of our weaknesses, we actually build credibility with the other side; we are building a small amount of shared reality that they might take us more seriously in settlement talks. Moreover, in any significant litigation, if the other side is doing good quality research with a good consultant, then their results should be pretty close to ours.
And, of course, it bears pondering: If one thinks that sharing some insights with the other side is risky, trial is not exactly a nap on a featherbed. In this era of fewer courtrooms and higher litigation costs, the modern litigator should at least consider some powerful methods for arriving at satisfying settlements that resolve the case sooner than a county-paid jury forces one upon the parties.
Reprinted with permission from the June 3, 2013, edition of “The Recorder” © 2013 ALM Media Properties, LLC. All rights reserved. Further duplication without permission is prohibited.