Best Practices in Mediating Damages by The Honorable James L. Ryan


The world of litigation has changed


dramatically over the last decade. As jury trials have decreased, the number of mediations has steadily been on the rise. Going forward, trial attorneys will participate in more mediations than jury trials, so their mediation advocacy skills will prove paramount to their overall success. This conclusion is augmented by the results coming out of mediations. The vast majority of privately mediated cases settle at the table or shortly after the mediation. (Since 1995, the thousands of cases handled by the mediators in The McCammon Group have settled at a rate in excess of 85%.) Thus, mediation is a primary driver to the resolution of the cases handled by trial attorneys. Yet, we know that trial attorneys put much more emphasis and time into honing their trial advocacy skills than their mediation ad- vocacy skills. The same is true regarding preparation. Many lawyers who would not dream of appearing in court un- prepared just wing it in mediation. This article provides my thoughts on some of the pointers that can help attorneys develop better mediation advocacy skills and can assist them in preparing to resolve their cases in mediation. In sharing these thoughts, I have attempted to address some basic pointers with an emphasis on damages.


Rule #1: Prepare as rigorously for mediation as you would for trial


Preparing for mediation is quite


different from preparing for trial, but no less important. Here are the basic steps:


A. Analyze the case The critical questions to consider


are: Winter 2009 Trial Reporter 25


1. What are the best possible out- comes in court?


2. What is the likelihood of achieving each of these possible outcomes?


3. How much would it cost to try this case (in addition to what has already been spent)?


Use this information to determine what you think a reasonable settlement range would be.


B. Discuss this analysis with your client Reaching agreement with a client


on what to settle for can be one of the most daunting tasks a litigator faces. To convince a client that $200,000 would be a favorable outcome on a perceived “mil-


lion dollar case” requires time, patience, and candor. Few clients easily apprehend the downside of trying a case: the risk of a jury awarding nothing at all even though they suffered significant damage, the full economic cost of litigation, the opportunity cost of lost time, and the emotional toll of trial. Far too often plaintiffs do not begin


to confront these issues head on until well into the mediation. When the demand and offer are miles apart, the mediator then tries to salvage the pro- cess by administering a reality check to both parties. The process will run more smoothly, and the plaintiff will react much more favorably, if the plaintiff enters the process with realistic expecta- tions.


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