How many times have you been court ordered to mediate a case and wondered if it would be a waste of time?
Maybe you want to make a good faith attempt at getting the case settled but think the other side will be unreasonable? Or maybe you are one of those beautiful trial lawyers who never loses a case and always gets huge verdicts.
Let’s first ask whether you are even required to mediate. Rule 1.710(b) of the Florida Rules of Civil Procedure provides the court may order the parties to mediation “if the judge determines the action to be of such a nature that mediation could be of benefit to the litigants or the court.”
As we know, judges routinely refer or order cases to mediation before trial. The “exclusions” under Rule 1.710(b) do not apply in most instances. Rule 1.700 provides that a party may move to dispense of mediation for good cause “other” than those listed in Rule 1.700(b)(1) through (3).
My experiences as a mediator, a litigant’s attorney at mediation, a father, husband and human being is to not jump to conclusions based on assumptions. You just might be surprised.
As lawyers, we are taught to test assumptions anyway. I have meditated on many cases where the parties initially thought there was no chance of settling, and yet the case settled to the satisfaction of the parties.
If the parties have the desire to settle, it can happen. Certainly, there are instances in which the case shouldn’t, but that should be determined after the process has ensued.
What makes a case you think will never settle, settle? Let’s use the example of a personal injury case where the plaintiff has severe injuries that could meet or exceed a seven-figure verdict, policy limits are a seven-figure amount and the parties are hundreds of thousands of dollars apart.
Mediation is as much an exercise as in trying to read minds as anything else.
What one says and does prior to mediation is not necessarily indicative of one’s mindset at mediation, a place where the parties finally get to meet face to face and there is an opportunity for closure.
Closure may not mean much to some attorneys, but it means a lot to most litigants I have seen. The desire to end the case has value to them.
Some of the dynamics of this type of mediation include whether the defendant has voiced strong opinions to the adjuster regarding his desire not to go to trial.
Perhaps the plaintiff has had anxiety over the prospect of putting his case in the hands of a half dozen strangers.
Maybe both sides were posturing to send a signal to the other side about value.
Maybe the adjuster just needs more information to pay the higher amount. There are many variables that would never be tested if the parties didn’t try.
Now to that great lawyer who never loses.
First, the truly great ones are humble. No good lawyer would guarantee anything to his/her client.
I had the great pleasure of trying a case with a friend of mine from another state who has obtained countless seven-figure verdicts.
He may be the most humble attorney I’ve ever met. He tried very hard to settle our case, even for an amount $3 million less than our ultimate verdict at trial.
In the least, like everything else we are supposed to do as lawyers – advocate, test and be reasonable. Don’t quit on something before you’ve tried. You never know until you know.
Musa Farmand is a certified civil circuit court mediator.