Practice Tip: How to Mediate a Product Liability Case

Build a Relationship with the Other Attorneys

Mediation, like politics, is the art of the possible. Building a good relationship with opposing counsel will pay dividends, and expand the scope of the possible. Discovery is the primary avenue to learn about the case. But frank pre-mediation discussions among counsel are also valuable. Use these discussions to ensure that all parties have the information necessary to evaluate the case. At the same time, use the discussions to manage the other parties' expectations before mediation. You do not want an opposing party to think they have a “slam dunk” case, or that you will “roll over.”

Lawyers, as a general rule, are hesitant to “educate” the opposition. But mediation by ambush is counterproductive. Of course, plaintiff's counsel must explain the basis for the claimed defect and liability. Defendants must also be forthcoming. A plaintiff is more likely to settle at mediation if the defense has explained why the claimed defect is not, in fact, a defect, or the alternate grounds for accident causation. At some point during mediation, opposing counsel will have to explain the strengths of your case to his or her client. Counsel can only do this if you have provided sufficient information, if your relationship is reasonably cordial, and if they trust you.

Prior to mediation, determine what person on the opposing side has decision-making power, either as a matter of law or as a matter of fact. For instance, if you know that a particular parent in a minor case has more sway, you can tailor your message accordingly. Frequently, if you ask, opposing counsel will tell you who calls the shots. Sometimes, if settlement is a high priority, opposing counsel will tell you what message will be most persuasive to that decision-maker.

Choose Your Mediator

The ideal mediator is one you regularly hire to good result. But that is not always possible. In almost all cases, the preferred mediator is experienced, engaged, creative, and has a backbone. Spend the extra money for such a person. In a product liability case, it is wise to use a mediator who is familiar with product liability law and the specific product type in question. Given the technical complexities of product litigation, an educated mediator will make your life easier. Basic biographical information is easily found on the Internet. But if you do not know a proposed mediator, call colleagues who have hired that mediator in the past, as past performance is the best predictor of future performance. Obviously, a mediator should be fair, and not prefer one party over the other. But do not shy away from using a mediator trusted by opposing counsel. Assuming you can persuade the mediator of the merits of your case, that trust will work to your advantage.

Evaluate Your Case

Above all, aim for a realistic case valuation. The relevant law and facts will guide your case-specific valuation. Published verdict and settlement information from similar cases in the geographic region is a good resource and provides a gauge in measuring the accuracy of your case valuation. Prior to any mediation, you will discuss case value with your client. But also consider how the other parties will value the case. If you can predict their bottom line, you are in a better negotiating position.

Similarly, decide if you will share some limited information about how you value the case with opposing counsel. You will never share your bottom line. But giving the other parties a sense of how you value the case before mediation is often productive. Assuming your valuation is reasonable, such information allows the other parties time to set their expectations accordingly. This is an important consideration. If a plaintiff seeking $1 million first learns at mediation that the defendant values the case at no more than $250,000, the plaintiff will likely be upset and not respond well. Conversely, a defendant's early disclosure that its case valuation is nowhere near $1 million will give the plaintiff's counsel time to process this information and control client expectations.

Remember to bring material supporting your position on damages and valuation to mediation. For example, a list of verdict and settlement results from similar cases will help you sway the mediator and perhaps opposing parties. In the same vein, give some thought to negotiation strategy before mediation. While any pre-conceived strategy will change over the course of a mediation, having a strategy in place beforehand increases your odds of a favorable result. It is better to have the flexible outline of a path than no path at all. Obviously, your goal is to settle close to your target number. A pre-mediation negotiation strategy increases the likelihood of achieving that goal because it forces you to be proactive rather than simply reacting to the other parties.

Prepare Your Mediation Brief

Your mediation statement is a roadmap for the mediator. You should clearly explain the facts, case chronology, and law. Give the mediator the information he or she needs to convince the opposing party to settle on terms favorable to your client. Pay particular attention to the fact summary, as a good explanation of who/what/why/where/when is often persuasive to mediators. Much like the opening statement in a trial, this first impression is lasting. Persuasively explain your case and counter the opposition's best arguments, but keep strident language to a minimum. Because product liability cases are technical, pictures and diagrams help educate the mediator ' a few good pictures may be worth many thousands of dollars. Setting forth any prior negotiations (demands/offers) will allow the mediator to get a running start at mediation.'

Some attorneys prefer to exchange mediation briefs. We prefer mediation briefs that are confidential to the mediator. If you decide it is wise to share information in the briefs, or the briefs themselves, you can do so at mediation.

Prepare Yourself

As with trial, preparation is key to successful mediation. You must know the facts, the law, and the evidence. You must be able to refute or counter your opponent's best arguments.

Your key themes, key arguments and key exhibits should be readily available as you walk into mediation. Particularly in product liability cases, photographs, diagrams, portions of expert reports, and portions of deposition testimony can help you explain complex concepts and technologies to the mediator and other parties. Re-read the depositions of the plaintiff and the defendants' representatives. These depositions, particularly the plaintiff's deposition, often contain highly relevant information that you did not notice when taking the deposition or reading the transcript for the first time. Seemingly unimportant facts about how the accident happened or how injuries affect a life can take on new importance on the eve of mediation.

If the mediation location is not familiar, arrive early so you can change or adjust any unacceptable situation, such as inappropriate room temperature, room size or a lack of privacy. If possible, spend a minute greeting the other lawyers.

Prepare Your Client

Client input is vital to mediation preparation, determination of settlement value and determination of settlement authority. You must be candid with your client about case strengths and weaknesses. Setting realistic client expectations is a fundamental aspect of mediation preparation. If your client will attend mediation, he or she must have an understanding of the process and his/her role in the process. Your client will likely want to be more than a silent observer, and you will have to prepare your client accordingly.

The client, if sufficiently familiar with case facts, can help educate the mediator about technical matters. Indeed, your client may know the facts and technology better than anyone else at mediation. Do not hesitate to use this resource. But make sure your client knows your case themes and presents them well. It is your job to make sure your client does not say something counter-productive.'

There is always the chance the client will hear some hard news or get “leaned on” by the mediator. Thus, have your client prepared for the give and take of mediation. Importantly, make sure you have explained to your client any bad facts or law before mediation. Your client should not get surprising bad news at mediation.

The old adage is that all parties walk away from a good mediation a bit unhappy. Make sure your client understands that complete victory is rare at mediation, where compromise is the order of the day. But, of course, your job is to make sure that such compromise is as small as possible. If compromise is not on your client's agenda, then you should be preparing for trial, not mediation.

Attend Mediation with an Open Mind

Set the tone in mediation early. A positive tone and strong message do more to bring the parties closer to settlement than accusations and bombast. The trend in mediation is to limit party interaction. Indeed, we disfavor opening statements, as they are often counterproductive. If, however, you do interact with the other parties, the initial interaction sets the tone for the day. Generally, a reasonable, open tone is better than an adversarial tone. Remind the parties that all attorneys present have a job to do ' to represent their clients. This will lessen any sense of personal attack. Provide information about the merits of your case in a clear confident manner. Counter your opponent's best arguments in a respectful manner. Give both the mediator and the other parties a clear picture of your case strengths. Finally, emphasize that you and your client are there to take part in thorough, productive settlement discussions.

Your job is to listen when other parties or the mediator speak. While product liability mediation focuses primarily on money, there are other interests at play: emotions, relationships, pride, saving face, being heard by the opposing party. Be attuned to these issues and be creative in your approach. If you listen to the mediator and other parties, you will learn something ' either about the financial bottom line or other interests at stake. What you learn may help settle the case, or it may help at trial. For instance, we have encountered plaintiffs who want to speak their mind to the manufacturer's representative at mediation. If this can be done in a manner respectful to all parties, it will often clear a path to settlement.

On a purely nuts and bolts level, keep track of new information and keep track of the parties' demands and offers ' write them down, noting the time, party making the demand/offer, and any explanatory notes. Bring a calculator because doing calculations on a piece of paper under time pressure is challenging.

Conclusion

Mediation is a human endeavor. Be credible and honest when addressing the other parties and mediator. Mediation is also a confidential proceeding, so you can be candid to the degree you are comfortable doing so. Remember that the mediator can help the parties address tough issues. He or she is not just a messenger, but an active participant. Ask yourself, “How can the mediator help my client reach his/her goals?” Finally, be patient. Mediation is a process and most progress is made toward the end of the session. Consider bringing a draft settlement agreement with the amount of the settlement payment left blank. This proposed settlement agreement will help the parties discuss non-monetary settlement terms, such as confidentiality, in detail at the mediation. Finally, if you do settle, make sure the document memorializing the agreement is signed by all parties and the mediator before you leave.

'

Kevin Curry, a member of this newsletter's Board of Editors, is a former partner at Bowman and Brooke LLP, who is now resident in the Office of the Minnesota Attorney General. Jennifer Bullard is an associate at Bowman and Brooke, resident in Minneapolis.

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“As a peacemaker the lawyer has a superior opportunity of being a good man. There will still be business enough.”

' Abraham Lincoln.

Mediation is a common feature of product liability practice. If done well, mediation earns you favor with your clients. They recognize that mediation is an opportunity to control the case outcome and save money. But before entering into mediation, preparation is crucial. Once at mediation, listen carefully to all parties present, including the mediator. If you prepare and listen, you increase the odds of a favorable result.

Build a Relationship with the Other Attorneys

Mediation, like politics, is the art of the possible. Building a good relationship with opposing counsel will pay dividends, and expand the scope of the possible. Discovery is the primary avenue to learn about the case. But frank pre-mediation discussions among counsel are also valuable. Use these discussions to ensure that all parties have the information necessary to evaluate the case. At the same time, use the discussions to manage the other parties' expectations before mediation. You do not want an opposing party to think they have a “slam dunk” case, or that you will “roll over.”

Lawyers, as a general rule, are hesitant to “educate” the opposition. But mediation by ambush is counterproductive. Of course, plaintiff's counsel must explain the basis for the claimed defect and liability. Defendants must also be forthcoming. A plaintiff is more likely to settle at mediation if the defense has explained why the claimed defect is not, in fact, a defect, or the alternate grounds for accident causation. At some point during mediation, opposing counsel will have to explain the strengths of your case to his or her client. Counsel can only do this if you have provided sufficient information, if your relationship is reasonably cordial, and if they trust you.

Prior to mediation, determine what person on the opposing side has decision-making power, either as a matter of law or as a matter of fact. For instance, if you know that a particular parent in a minor case has more sway, you can tailor your message accordingly. Frequently, if you ask, opposing counsel will tell you who calls the shots. Sometimes, if settlement is a high priority, opposing counsel will tell you what message will be most persuasive to that decision-maker.

Choose Your Mediator

The ideal mediator is one you regularly hire to good result. But that is not always possible. In almost all cases, the preferred mediator is experienced, engaged, creative, and has a backbone. Spend the extra money for such a person. In a product liability case, it is wise to use a mediator who is familiar with product liability law and the specific product type in question. Given the technical complexities of product litigation, an educated mediator will make your life easier. Basic biographical information is easily found on the Internet. But if you do not know a proposed mediator, call colleagues who have hired that mediator in the past, as past performance is the best predictor of future performance. Obviously, a mediator should be fair, and not prefer one party over the other. But do not shy away from using a mediator trusted by opposing counsel. Assuming you can persuade the mediator of the merits of your case, that trust will work to your advantage.

Evaluate Your Case

Above all, aim for a realistic case valuation. The relevant law and facts will guide your case-specific valuation. Published verdict and settlement information from similar cases in the geographic region is a good resource and provides a gauge in measuring the accuracy of your case valuation. Prior to any mediation, you will discuss case value with your client. But also consider how the other parties will value the case. If you can predict their bottom line, you are in a better negotiating position.

Similarly, decide if you will share some limited information about how you value the case with opposing counsel. You will never share your bottom line. But giving the other parties a sense of how you value the case before mediation is often productive. Assuming your valuation is reasonable, such information allows the other parties time to set their expectations accordingly. This is an important consideration. If a plaintiff seeking $1 million first learns at mediation that the defendant values the case at no more than $250,000, the plaintiff will likely be upset and not respond well. Conversely, a defendant's early disclosure that its case valuation is nowhere near $1 million will give the plaintiff's counsel time to process this information and control client expectations.

Remember to bring material supporting your position on damages and valuation to mediation. For example, a list of verdict and settlement results from similar cases will help you sway the mediator and perhaps opposing parties. In the same vein, give some thought to negotiation strategy before mediation. While any pre-conceived strategy will change over the course of a mediation, having a strategy in place beforehand increases your odds of a favorable result. It is better to have the flexible outline of a path than no path at all. Obviously, your goal is to settle close to your target number. A pre-mediation negotiation strategy increases the likelihood of achieving that goal because it forces you to be proactive rather than simply reacting to the other parties.

Prepare Your Mediation Brief

Your mediation statement is a roadmap for the mediator. You should clearly explain the facts, case chronology, and law. Give the mediator the information he or she needs to convince the opposing party to settle on terms favorable to your client. Pay particular attention to the fact summary, as a good explanation of who/what/why/where/when is often persuasive to mediators. Much like the opening statement in a trial, this first impression is lasting. Persuasively explain your case and counter the opposition's best arguments, but keep strident language to a minimum. Because product liability cases are technical, pictures and diagrams help educate the mediator ' a few good pictures may be worth many thousands of dollars. Setting forth any prior negotiations (demands/offers) will allow the mediator to get a running start at mediation.'

Some attorneys prefer to exchange mediation briefs. We prefer mediation briefs that are confidential to the mediator. If you decide it is wise to share information in the briefs, or the briefs themselves, you can do so at mediation.

Prepare Yourself

As with trial, preparation is key to successful mediation. You must know the facts, the law, and the evidence. You must be able to refute or counter your opponent's best arguments.

Your key themes, key arguments and key exhibits should be readily available as you walk into mediation. Particularly in product liability cases, photographs, diagrams, portions of expert reports, and portions of deposition testimony can help you explain complex concepts and technologies to the mediator and other parties. Re-read the depositions of the plaintiff and the defendants' representatives. These depositions, particularly the plaintiff's deposition, often contain highly relevant information that you did not notice when taking the deposition or reading the transcript for the first time. Seemingly unimportant facts about how the accident happened or how injuries affect a life can take on new importance on the eve of mediation.

If the mediation location is not familiar, arrive early so you can change or adjust any unacceptable situation, such as inappropriate room temperature, room size or a lack of privacy. If possible, spend a minute greeting the other lawyers.

Prepare Your Client

Client input is vital to mediation preparation, determination of settlement value and determination of settlement authority. You must be candid with your client about case strengths and weaknesses. Setting realistic client expectations is a fundamental aspect of mediation preparation. If your client will attend mediation, he or she must have an understanding of the process and his/her role in the process. Your client will likely want to be more than a silent observer, and you will have to prepare your client accordingly.

The client, if sufficiently familiar with case facts, can help educate the mediator about technical matters. Indeed, your client may know the facts and technology better than anyone else at mediation. Do not hesitate to use this resource. But make sure your client knows your case themes and presents them well. It is your job to make sure your client does not say something counter-productive.'

There is always the chance the client will hear some hard news or get “leaned on” by the mediator. Thus, have your client prepared for the give and take of mediation. Importantly, make sure you have explained to your client any bad facts or law before mediation. Your client should not get surprising bad news at mediation.

The old adage is that all parties walk away from a good mediation a bit unhappy. Make sure your client understands that complete victory is rare at mediation, where compromise is the order of the day. But, of course, your job is to make sure that such compromise is as small as possible. If compromise is not on your client's agenda, then you should be preparing for trial, not mediation.

Attend Mediation with an Open Mind

Set the tone in mediation early. A positive tone and strong message do more to bring the parties closer to settlement than accusations and bombast. The trend in mediation is to limit party interaction. Indeed, we disfavor opening statements, as they are often counterproductive. If, however, you do interact with the other parties, the initial interaction sets the tone for the day. Generally, a reasonable, open tone is better than an adversarial tone. Remind the parties that all attorneys present have a job to do ' to represent their clients. This will lessen any sense of personal attack. Provide information about the merits of your case in a clear confident manner. Counter your opponent's best arguments in a respectful manner. Give both the mediator and the other parties a clear picture of your case strengths. Finally, emphasize that you and your client are there to take part in thorough, productive settlement discussions.

Your job is to listen when other parties or the mediator speak. While product liability mediation focuses primarily on money, there are other interests at play: emotions, relationships, pride, saving face, being heard by the opposing party. Be attuned to these issues and be creative in your approach. If you listen to the mediator and other parties, you will learn something ' either about the financial bottom line or other interests at stake. What you learn may help settle the case, or it may help at trial. For instance, we have encountered plaintiffs who want to speak their mind to the manufacturer's representative at mediation. If this can be done in a manner respectful to all parties, it will often clear a path to settlement.

On a purely nuts and bolts level, keep track of new information and keep track of the parties' demands and offers ' write them down, noting the time, party making the demand/offer, and any explanatory notes. Bring a calculator because doing calculations on a piece of paper under time pressure is challenging.

Conclusion

Mediation is a human endeavor. Be credible and honest when addressing the other parties and mediator. Mediation is also a confidential proceeding, so you can be candid to the degree you are comfortable doing so. Remember that the mediator can help the parties address tough issues. He or she is not just a messenger, but an active participant. Ask yourself, “How can the mediator help my client reach his/her goals?” Finally, be patient. Mediation is a process and most progress is made toward the end of the session. Consider bringing a draft settlement agreement with the amount of the settlement payment left blank. This proposed settlement agreement will help the parties discuss non-monetary settlement terms, such as confidentiality, in detail at the mediation. Finally, if you do settle, make sure the document memorializing the agreement is signed by all parties and the mediator before you leave.

'

Kevin Curry, a member of this newsletter's Board of Editors, is a former partner at Bowman and Brooke LLP, who is now resident in the Office of the Minnesota Attorney General. Jennifer Bullard is an associate at Bowman and Brooke, resident in Minneapolis.

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