00:00 Speaker 1 Welcome to the Effective Lawyer, a podcast for ambitious attorneys who want to improve their practice. My name is Jack Zinda, and I'll be your host. 00:22 Speaker 2 Welcome to the Effective Lawyer podcast. My name is Kevin Tully. I'm the Chief Marketing Officer at Zynda Law Group, and with me today is our founder and Lee Troweler, Jack Zinda. Today we're going to be talking about attending your first mediation. 00:36 Speaker 1 Yeah. Thanks, Kevin. So I want to talk today about mediations, which is an area that if you're going to be a trial lawyer or litigator, you're going to be spending a good amount of your practice. And I see the execution of mediation handled into varying degrees of effectiveness. And I think a lot of it comes down to the way that attorneys prep for these or lack of preparation, and then also the way they view what the objective of mediation is. So I wanted to walk through some things that we do when we prepare for mediation in all of our cases. So I think the first thing you want to do is zoom out and say, what is my objective by going to mediation? 01:20 Speaker 1 And for those of you that are really new to the practice of law and maybe you just got out of law school, mediation is where you go to a mediator and they try to help you resolve the case. And typically you will have a plaintiff there, and you will either have a defendant or an insurance adjuster or both. And then you'll have the attorneys for both sides, and then you will have a mediator who hopefully specializes and focuses on the type of area you practice. In our firm, it's personal injury law. And so that's kind of setting the scene. Who's going to be at the mediation? Most courts mandate mediation, and so you're going to have to go to it at some point in your case. And I'll talk about ways to maybe not go to mediation if you don't want to. 02:03 Speaker 1 That works in some situations. So first, in my book, the objective of mediation is threefold. One is to gather information. The second is to set the defense up to resolve the case potentially at a later date. And the third is to potentially resolve the case. You notice that's third objective. I think the first area that attorneys go wrong, especially plaintiffs lawyers who maybe are working on a contingency fee basis and are worried about where their next resolution is going to come from, look at mediation as the goal of settling the case. I know I did when I first started practicing law. If you look at it through that prism and you don't want to settle your case short, and you don't want to come across as desperate to resolve your case. 02:55 Speaker 1 I would say, on average for our firm, maybe 30% of mediations successfully resolve at mediation. Now, there's a percentage that resolve shortly after mediation and some that resolve shortly before trial. But we really don't focus on mediation as the main objective being to resolve the case. But there's a benefit to mediation because you have everybody in the room there who could make a decision and the mediator could potentially be an advocate for you to the decision maker for the defense. So that brings me to my next tip is you want to always make sure you know who's going to attend mediation. You need to make sure who is the adjuster that's going to attend it. Do they have authority to resolve the case for a number that you think is reasonable? 03:46 Speaker 1 Many insurance companies will send adjusters without the proper authority, or they won't send anybody at all. 03:56 Speaker 2 And how do you know Jack? Do you ask directly ahead of time? 04:00 Speaker 1 That's a great question. So the first thing is, you want to get in writing ahead of time who's going to attend mediation? Use the local rules to your advantage. Those should be online. In almost every jurisdiction I've seen, in almost every court that requires mediation, which is almost all of them, requires that someone with authority to resolve the claim attends mediation. And so we'll send a letter and says, hey, we want to verify that the following adjusters are going to be present at mediation and that they will have authority to resolve the case. And please provide their names. Mediators also require to provide the names of who attends. Now, it blows my mind, but insurance companies play such games with this topic, like they won't provide the right person. 04:50 Speaker 1 They won't say their names name, or they'll hire somebody who's actually not an adjuster for the company because they don't want to pay to fly someone out. So you really want to lock them in on that. Now let's say they say, well, we're not going to send an adjuster with a certain amount of authority. This is, you know, we're just going to send this person. Then what we will do is we will file a motion to excuse mediation with the court because they're not going to try to resolve it in good faith. That's a power play to show, like, listen, we're not going to go waste our client's time so you can try to cram a low number down their throat. We'll just ask the judge to excuse mediation to begin with. 05:29 Speaker 1 And a lot of times that'll get them in line, because the defense typically wants to resolve it more than the plaintiff. If you set your case up the right way, but you want to make sure you're not getting steamrolled by the insurance company and accepting the wrong person to be there. 05:44 Speaker 2 So that motion forces the right people to be in the room. 05:48 Speaker 1 Exactly. Because they don't want to be embarrassed in front of the judge. And if they choose not, and sometimes we get the judge to approve, we don't have to go to mediation, which again, shows the defense. We're not here to beg for you to pay us some small amount of money. We want to get the case resolved for fair value. When we used to be in mediation, now we do a lot of mediations virtually, we would always require the adjuster be there in person and not attend over the phone if our client was going to be there in person. Again, I think it's important that you treat your client with respect and say, hey, if my client's going to spend a day out of their lives here, your adjuster needs to spend a day out of their life here and take this seriously. 06:27 Speaker 1 Because otherwise they're going to be on a phone call doing other things, not really having the mediator talk to them, and all the pressure is going to be on your client versus the defense adjuster hearing the same things you're hearing. 06:41 Speaker 3 This podcast is presented by Zynda Law Group, a nationwide personal injury firm. For over 10 years, the experienced lawyers at ZLG have been partnering with outside counsel across the United States on all types of personal injury and wrongful death cases. With over 30 attorneys, Zynda Law Group has paid out millions in referral and joint venture fees since 2015. To learn more about partnering with Zynda Law Group, please email us@re referralsindalaw.com we'll schedule a time for you to meet with Jack Zinda or one of our trial lawyers to discuss your case. 07:20 Speaker 1 So the next step you want to do is you want to make sure you understand what your case is valued at before attending mediation. And you want to send a demand to the opposition at least 30 days in advance. But even more, sometimes what I do is I ask the defense lawyer and say, hey, how soon in advance of mediation do you need a demand from me to be prepared to properly resolve and evaluate the case? Because your demand goes to an insurance company, and let's say you have a case worth several million dollars, that adjuster typically has to go up the chain of command to a vice president to get further authority. And that takes time. 07:59 Speaker 1 You don't want to wait to give the evidence you're going to give to them at mediation until mediation itself, because they won't have time to evaluate your case, and they won't have enough money to pay you to resolve it then. So you're really just delaying getting the case resolved, potentially. So setting the value. Now, how do you go about doing that? You want to look at prior cases, you want to look at jury verdicts, you want to talk to friends and colleagues. But here's what's key. Decide the value and be decisive. It is very difficult to say for sure what any case is worth that's decided by jury. And if you try a case 12 times, you're going to get 12 different answers. But in mediation, if you're not decisive, the defense has an advantage because they're decisive. 08:39 Speaker 1 Someone has told them a number that they have to, they can't go above, and they're not allowed to go above that number. So, like, they. They are decisive in mediation. So you have to have the same approach. At our firm, we will do a roundtable involving attorneys at different levels within the firm. And we do a minimum of three attorneys attend that and set the value at that meeting. And the attorney that goes to mediation doesn't matter if it's a partner or a junior lead trial lawyer, is not allowed to go below that number without coming and getting it changed. And that forces everybody to stay within the lines and really think about what the case is valued. Because I've seen a lot of lawyers go to mediation, say, oh, it's worth X, let's say half a million dollars. 09:22 Speaker 1 And when it came down to it, they actually accepted 300,000 because they weren't sure that what the case was really worth in their mind. 09:31 Speaker 2 If you want to learn more about valuing your case, Jack did a whole podcast on that topic, so be sure to see our archives for more on that. 09:40 Speaker 1 And then the next thing that you want to think about is preparing your client for mediation. So so far, we have know the objective, figure out who's going to attend, decide the value. You know, send a demand with plenty of time in advance for them to properly evaluate it. Prepare your client. So how do you do that? We will typically set two meetings with our client before mediation. One for sure is going to happen. One may not happen. Okay. And we like to have a backup meeting in case the client is just really freaked out by the first meeting and needs more time to prep that's very rare. That happens more in depositions than anything else. But you want to have that backstop. 10:16 Speaker 1 It also forces you as a lawyer to do prep with the client further in advance in case they need more time. 10:22 Speaker 2 Could you talk a little bit about what the client's role is in mediation? I wasn't even sure if they would be in the room for that. 10:29 Speaker 1 That's a great question. In my book, the client's role in mediation is to listen and to not say anything unless I tell them to speak up. Because you don't know what the mediator is going to observe and share with the other side. They're supposed to keep everything confidential between the two sides, but there's ways that people can read between the lines. So they will be there and they will hear what the media has to say. They'll hear what we say to the mediator. And occasionally each side will do an opening statement. We've kind of gone away from doing opening statements and mediations because we find that it hasn't been helpful to getting a case resolved. 11:07 Speaker 1 Sometimes our client will get really upset by something the defense says, and we find that the defense isn't really listening to them if they weren't sent to them way in advance anyway. So we've started doing our openings 30 days out and sending to the defense and then telling the media we really don't want to hear from the defense in an opening statement because it's not productive. So their job is twofold. One is to listen, and two, if we get to a number that makes sense to resolve it, to make a decision if they want to resolve the case that day. And the way we frame it to the client is listen. You're going to be offended by the first offer they make. And that happens almost every single time. So just warn them. 11:48 Speaker 1 You know, we've had cases that resolve for $5 million and the first offer was $10,000. And so you tell the client, listen, whatever they say at that first offer, have a poker face. Don't act upset. Also, don't act excited about any number because if they get to a range, we think it might resolve. You don't want to seem eager to number. We had a mediation one time where we had a client who had been quiet the entire mediation. And it was a young man, he was like 24 years old, and he lived with his mom and delivered kind of a delivery guy, but kind of did it part time. And he'd been in a pretty bad wreck where he had some pretty bad injuries. And we Prepped him ahead of time. And we go to mediation, and he doesn't talk at all. 12:35 Speaker 1 The mom's doing all the talking. She's not saying things she shouldn't say. And she's kind of in charge. And we're getting to the end of the day. And the defense comes back with some number, you know, some around. Let's say it was 100,000 less than we wanted to take. And I say, you know what, mediation's over. We're leaving. We're not going to take this number. So the mayor says, whoa, whoa, like, let me see what else I can do. Go back, get some more money. And I tell my clients, like, listen, you know, I think they're going to offer that number we talked about before. And so if they do, I'm going to try to get more money out of them and try to get it resolved above it. So they come back and they offer. 13:18 Speaker 1 They actually come up, you know, 100,000 more, which was the number we wanted to hit. And I said, no, that's not even close to good enough. You need to go back and get more money. That's not what we want. We need more. And my client, for the first time in seven hours says, that was the number you just said we would take. Why are you sending them back? Which was really funny. And I luckily had a good relationship with the mediator, and I said, okay, well, disregard what he said. And I want you to say what I said back to the other side. 13:49 Speaker 2 That's great. A classic palm to forehead moment. 13:53 Speaker 1 Exactly. So you can't over prep your client. And I like to even sit them down in a conference room and explain exactly where they're going to be seated, that I have a laptop out. Tell them a little about the mediator, because they'll assume the mediator has power they don't have. Like, all the media can do is try to facilitate a negotiation. They can't force anyone to do anything. And they may imagine it's going to be like a courtroom where they have to be on another tip is I tell them it's going to be really boring. You know, the meteor is going to talk to us. They may be gone for an hour and a half. So bring something to do, bring a book, bring an iPad, because you don't want them to just be staring at you the whole time. 14:34 Speaker 1 And I use that time to prepare their case. I tell them ahead of time, listen, it's not that I don't want to talk to you, but you know, in between breaks, I'M going to use this time to work on your case and get ready for trial, because it's a great opportunity for me to do that. And also, you're here so I can ask you any questions I have. So they're not. So I'm able to multitask during those breakout times because mediation can be a lot of hurry up and wait. Yeah. 14:55 Speaker 2 Keeping them busy and distracted probably reduces the risk of them getting anxious and then speaking up or doing something out of character. 15:02 Speaker 1 Exactly. And I've also warned them, listen, the likelihood of this resolving today is relatively low. So I'm setting the bar low. And I'm telling them that you're going to be offended by the first offer. And I'm saying the objective is to gather information, find out what is the most money they're willing to pay today, and then make a suggestion if you should take that number or not. And that also allows us to get offers back and forth that may below what we'll actually take at first so the client doesn't get upset and get frustrated. Another thing that you want to keep in mind for mediation is you want to be prepared to walk away at the right time. So let's say that it's apparent that they only brought half a million dollars and you think the case is worth at least a million dollars. 15:50 Speaker 1 At that point, you may make the decision to strategically leave so you don't negotiate further than you would like, because whatever number you come down to, the adjuster is going to write in the file. This is the max they want. And you're going to be starting from that place every other time in the future. So you want to be really careful. And we will actually, in our valuation meetings, map out the negotiation strategy and play. Okay, when do we walk away? What's a BS offer? What do they. How can we tell if they're not being serious? And so we've thought through those things ahead of time. We also have kind of a hotline process where the attorney at mediation will call one of our cell phones if they have a question. And we always take that call, even if we're in a deposition. 16:32 Speaker 1 We'll take a break to make sure we get back so people can get advice on what they should do if. 16:36 Speaker 2 You do have to walk. You mentioned earlier that a lot of times a resolution will come following mediation. How does that typically play out? Is that the defense reaching back out to try to smooth things over and get you kind of back to the negotiating table, so to speak? 16:52 Speaker 1 Yeah, that's a great question. So typically, after mediation, it might resolve in one of two ways. The first is what's called a mediator's proposal, where the mediator proposes a number. And the way those work is the mediator sends it to both sides, and if one side accepts it and the other side declines it, the side that declines it does not know the other side accepted it. So it's a way to not share what you think the case is worth. And a lot of times a meteor will kind of know what both sides have. And it's also an opportunity for the adjuster to go back to another adjuster to get authority to pay that number. 17:34 Speaker 1 And now it's not just the plaintiff saying what it's worth, it's a third party saying, this is what the case is worth as well, which can put more pressure on the defense. Also, a lot of times the defense will call back a week or two later and say, hey, you know, I talked to the adjuster. They want to come back to the negotiating table. Can we talk again? And that may either be through the mediator or maybe just back and forth with each other, or it might take some additional depositions or getting closer to trial if it's going to resolve another question. 18:03 Speaker 2 You're a sports fan. I'm sure you've watched a lot of Cowboys games where they were on the path to a win and the good old referee screwed it up. Is there a way that the mediator can screw it up in this case? Are there good mediators and bad mediators? And what should you be on the lookout for there? 18:21 Speaker 1 Yeah, that's a great question. You know, there are good and bad mediators. I think that you want a mediator that the defense, in my opinion, that the defense is going to listen to, because I'm sure about what I want to have happen, and I feel confident that I can not be pushed around. But if the defense doesn't respect the mediator, they're not going to be helpful to get the case resolved. I also want to make sure that it's someone who's not going to try to bully my client into taking a number they shouldn't take and that they have expertise in this area. So I'll usually ask for people on a trial or listserv if I haven't dealt with them before for what's this mediator like? What can I expect? 19:02 Speaker 1 I always try to have a phone call with the mediator ahead of time just to kind of get a sense of who they are and explain my side of the case. And I Don't get bullied. You know, a lot of mediators are ex judges, both federal and state court and you know, they're not a judge anymore. Like you want to be respectful, but they don't get to say what happens. They get an opinion. And I also want to make sure that the mediator you pick says a lot about what each side thinks the case is worth. There are mediators that only work on really large cases. So if you use that mediator, everyone's kind of agreeing this is a big case and so that can be a signal in and of itself what type of media you're going to use. 19:42 Speaker 1 Some are better with multi party cases that involve a lot of different people. Some are more efficient and can get it done more quickly. I have mediators I use when I'm just checking the box, I'm like, there's no way they're going to pay me enough money. I just want to get the case to trial and they'll do like morning mediations that are like an hour long. And so it just depends on the type of case I have and the type of issue I'm trying to resolve. So just to recap, one, make sure you understand what your objective is. Two, know who's going to attend. Three, decide the value of the case. Four, make sure you prep your clients. Five, send your demand way in advance. Six, be prepared to walk away and know what number it is you're going to walk away at. 20:28 Speaker 1 And seven, don't get too worked up or stressed out about mediation. That'd be the last thing I'd leave everyone with. It is a path on the way to resolving a case. When I stopped thinking about mediation as the objective was to resolve it on that day, it made it a lot easier. And I know that's hard if you're doing a contingency view practice, but you will get better numbers later if you're patient or if you just take the case to trial. So don't under settle mediation and don't make it a bigger deal in your head than it actually is. 20:56 Speaker 3 Awesome. 20:57 Speaker 2 Well, thanks Jack. How can people follow up with you if they're looking for more information on this topic? 21:01 Speaker 1 Yeah, if you have more questions, as always, you can reach out@jackendalaw.com or give me a shout at 512-246-2224. Thanks Kevin. Great. Thanks Jack. 21:17 Speaker 3 Thanks for listening today's episode of the Effective Lawyer. You can learn more about our team and find other episodes of our podcast at zindalaw.com. As always, we'd appreciate that you subscribe, rate and review the pod. Thanks.