“Preparation, preparation, preparation,” is the trial lawyer’s mantra. It is possible to over-try a case, but it is not possible to be over-prepared for trial. On the other hand, preparation is expensive. And preparation may seem wasteful, if the case does not go to trial, as most cases don’t. So most trial lawyers would rather avoid burdening their clients with unnecessary costs, i.e., costs that are not going to help try the case if it must be tried, or that would help settle the case, which might mean costs that show the other side that you will be well-prepared for trial.
Parties go to mediation precisely to avoid the enormous costs of preparing for trial. As long as they have sufficient information to evaluate the likely outcome of a case, they do not need to be ready to cross-examine every possible witness, or research every possible motion. But what about preparation for the mediation itself? To the extent mediation is becoming a substitute for trial, as years ago depositions started becoming a substitute for trial, shouldn’t the parties prepare for the mediation in a manner similar to preparing for trial? That means not only thinking about negotiation strategy, but also thinking about how to present helpful facts, and how to deal with expected questions from the mediator and the other side.
I mediated a case recently where the plaintiff was demanding compensation for lost earnings. But the plaintiff had no documentation to support her claim. I told her that she couldn’t expect the defendant to take her word for the number of jobs that she claimed to have lost, any more than she could expect the judge or jury to take her word for that at trial. We ended up continuing the mediation to allow the plaintiff to come better prepared next time. Almost the exact same thing happened in another case where one of the issues was property damage. An itemized list is nice, but in this case the list was sloppy and contained a number of discrepancies. Receipts and appraisals and photographs would have been even nicer. Somehow, we settled that case, either because the defendant was willing to accept that the plaintiff would be able to come up with additional support for the claim, or because the defendant wanted to avoid the risk that the jury might accept the claim based on the plaintiff’s testimony alone. Could this plaintiff have gotten a higher settlement if he had brought better evidence to the mediation? Quite possibly, if he had it. It may be that he brought all he had. The point remains, however, that the parties need to think about putting on the best case they can at the mediation itself.
If you have favorable evidence, you should turn it over to the other side. What are you saving it for? The value of surprise at trial is overrated anyway, in my opinion, and the case probably isn’t going to trial anyway. If you have the caselaw on your side, you should cite it in your mediation brief. If your case would benefit from a meticulous and organized presentation (and whose wouldn’t?), you might want to show the other side your meticulous and well-organized brief. If you think the value of the case will improve by taking a deposition, you should probably take it before the mediation. If you think the other side is not going to look very credible in front of a jury, you might think about how to get the opposing witness to reveal his weaknesses in front of the mediator and his own attorney, or you might at least cite some deposition testimony. If you can’t or don’t bother to do these things, the other side might just call your bluff.
Mediation gives parties the opportunity to avoid the enormous costs of a full-blown trial. That doesn’t mean that it is also worth shirking the much lower costs of an impressive presentation at the mediation itself.
(Reuters photo of Chrysler legal team on their way to bankruptcy court in lower Manhattan)