“I need to settle this case but if I suggest mediation, my opponent will smell blood and I’ll get a worse deal.” Every litigator has faced this dilemma so here are some strategies to suggest mediation with minimum downside:
- Check out whether your jurisdiction mandates mediation; lots do. The federal courts in both St. Louis and East St. Louis send virtually all civil cases to mediation by local rule. This is true in many State Courts too. So, sit tight and wait for your referral, or better yet …
- Reach out to your opponent before the case is even filed and offer to go to mediation first. Suggest a few mediators. Save your filing fees. Write an email or letter to your opponent making the pitch that the court is going to mandate mediation anyway so why not try it now.
- Mention to your opponent, perhaps during a phone call on scheduling, or while on a break in a dep, that you recently had a great experience with Ms. __________, a mediator and suggest taking a look at using her for this case.
- Same scenario, but mention that your firm had a case recently before the same judge, or in the same court, as assigned in your case, and the judge ordered mediation and you understand this judge/court frequently orders cases to mediation, so maybe we should mediate now and save some discovery costs and time.
- Explain to your opponent that your client is going through some external event, i.e. (applying for new malpractice insurance, buying a new home, moving, having a baby, corporation is being acquired and wants to minimize pending litigation during the due diligence review, illness, or any other event that does not impact the facts of the litigation) and is open to settling this case in near future for the sake of convenience. Next step is suggesting a few mediators. However, you would want to emphasize that this external event does not change your client’s determination to litigate the case, if mediation does not work out.
- Face the music and realize that if your case has at least a few good points, don’t worry about the optics of suggesting mediation. In your suggestion, remember your strong points and get to mediation sooner as opposed to later.
I hope you can use some of these techniques and suggest KIM L. KIRN as your mediator.
