BY Donald J. Spero, Esq.

If you are involved in litigation in the state or federal courts in Florida it is 99% certain that the court will order you to mediate the claim. The only way you will avoid court ordered mediation is by settling with the opposing party or parties prior to receiving the court's mandate.

Mediation should not be regarded by the parties or their representatives as some inconvenient obstacle to get by while continuing on with an adversarial proceeding. It can be as significant as any other step in the case prior to trial. It is an opportunity to demonstrate to the opposing parties the strengths of your counsel and of your case. At its best it is an opportunity to reach a negotiated settlement thereby avoiding the uncertain prospects of how a judge or jury will rule. Negotiated settlements additionally save expense and time which can be used for more beneficial pursuits.

lI. Who Should be Present at the Mediation?

Mediators cannot effectively perform their function in the absence of the person responsible for making decisions. The decision maker should be present to learn at first hand the arguments of the opposing party and benefit by the experience and skill of the mediator. The decision maker who is to be informed only by telephone call from a person who is present is little likely to be persuaded by a second hand hearing of the arguments presented.

Moreover he rules are explicit on the subject of who must attend the mediation conference in addition to the mediator. The Florida Rules of Civil Procedure spell out the attendance requirements. "Unless stipulated by the parties or changed by order of the court .The party or its representative having full authority to settle without further consultation" must be present along with the party's legal counsel of record if the party is represented. The mediator has the discretion to proceed in the absence of counsel unless the court has ordered otherwise. If any party is insured that party's carrier must be present by someone other than the insurance company's counsel. The representative must have authority without consultation to settle up to the insurance policy limits or the plaintiff's last demand, whichever is less. The insured party must attend the mediation as well even if the insurance representative and his counsel are present. Where a A public entity may be represented by "the physical presence of a representative with full authority to negotiate on behalf of the entity and to recommend settlement to the appropriate decision making body of the entity." The rules further provide for sanctions against a party who fails to attend the mediation.

The rules of the Federal District for the Southern District of Florida require the presence at the meditation ". unless excused by the presiding judge in writing, all parties, corporate representative (insurance adjusters, etc. . with full authority to negotiate a settlement." A public entity that is defending a claim or a counterclaim must be physically present at the mediation by one ". with full authority to negotiate on behalf of the entity and to recommend settlement to the appropriate decision making body of the entity." The mediator is required to report the absence of a necessary representative. The absent party may be subject to sanctions by the court.

The rules of the Federal Court for the Middle District of Florida similarly require the presence "Unless excused by the presiding judge in writing, all parties, corporate representatives, (insurance adjusters, etc.) . with full authority to negotiate a settlement." Sanctions may be imposed for lack of compliance. The Middle District Rules further allow mediation to proceed if a party that has been properly notified is not present. The mediator may recommend sanctions for non-attendance.

Along with the requirements of the rules discretion should be used in selecting the representative of a business entity. If it is a hostile environment employment case it is probably not wise to select any person accused of creating that environment. Where the case involves details of a company's operating procedures, human resource policies or any other aspect of the company's business it is good to have a representative who is conversant with that information. Consider also the demeanor of the person selected to represent the company. It should be one who presents well and who will act with the necessary restraint.

III. Preparing the Client and the Client's Representative

Even where some of the parties have attended mediations previously it is a good idea to brief them in advance on the rules and procedures of the mediation. The representative should be reminded of the confidentiality requirement of mediations. There are multiple reasons for doing so. First, the client should be set at rest as to concerns about publication of communications exchanged and information divulged. The client should not be inhibited in presenting arguments and information over concerns of being quoted in court or fears that the information will be shared with people outside of the mediation. Second, the client should be apprised of the jeopardy that can arise where there are communications that are not allowed under the mediation rules which. The sanctions may even include dismissal of a party's pleadings. Additionally the client should be made aware that the mediator is not permitted to disclose to the opposing party information communicated in caucus when the other party is not present.

The client or the client's representative should be put on notice of the need for restraint during the mediation process. Abrasive comments and hostile demeanor will get the other side's hackles up likely destroying the efficacy of the process.

In most cases it is advisable to begin the mediation in joint session with the parties each presenting their positions on the matter in controversy. There should also be preparation on the differing roles of counsel and the client/representative. There are occasions where a particularly articulate client can best make at least part of the opening statement of the party's position. In some cases the client/representative may have retained cordial relations with the opposing party. Further no one better than a party can make a conciliatory statement of regret that the parties' relationship has deteriorated to the point where judicial intervention is sought. A party may also be the one best able to state neutral reasons for the disputed actions.

In making the opening statement there is no need to be modest about the strengths of your position or your willingness to proceed with full scale litigation if the matter does not resolve. However the manner in which such positions are expressed can either help or hurt the possibilities of a negotiated resolution. Let the opposition know that your comments are not intended to be offensive; you are merely stating what evidence you will introduce at trial. You should let the other party know that you have strong views about the strengths of your case but that you are present in good faith and willing to evaluate what the opposing party has to say. It is a very bad idea, unless you want the mediation to end with a quick impasse so you can leave, to open up by telling the opposing party that its case is so meretricious that you will offer little or nothing

The opening statement should be factual. State your view of the facts and the law rather than using descriptive adjectives that convey your view of the merits. Adjectives do not convince; fact do.

The client as well as counsel that mediation is not an adjudicatory process. The parties will have differing views as to the facts and/or the law. If these differences did not exist the parties would not be at odds. The these differences are not resolved at mediation. The mediator does not have the authority to make findings of fact or conclusions of law.

Before the mediation parties should carefully consider what they want to achieve in the mediation. They must recognize that the process is not a means of providing a make whole solution. Parties should not expect to obtain all that they hope to achieve if successful at trial. Most mediations deal with the monetary value of claims. Nevertheless when preparing for mediation parties should explore what non monetary consideration may contribute to arriving at a resolution. It might be an apology, a favorable reference, providing equipment or other material, rehiring a dismissed employee or re-establishing a failed or lapsed contract. Non monetary consideration can be highly effective in arriving at a settlement.

In some cases attorneys prefer to waive opening statements. This may be advisable where the hostility of the parties is so great that their being together will unavoidably create an explosive situation. In one case a claimant was so afraid of the other sides representatives that she refused to be in the same room with them.

IV. Prelude to a Trial

The preparation of your presentation can be the most significant factor in leading to a favorable outcome. The first rule is to know your facts well enough so that you do not have to grope for them during your presentation. Demonstrate that you are fully conversant with the facts from discovery and interviews with witnesses. It is helpful to show that you have interviewed knowledgeable individuals to the extent permitted by ethical considerations. Provide information that corroborates your client's view of the facts.

When the mediator goes into private caucus with the opposing party you want the mediator to advocate your position by going over its strengths and the other side's vulnerability. The mediator can best accomplish this by being well informed of the merits of the case. Thus it benefits your case to furnish the mediator information in advance. A well written mediation statement is commonly the way mediators are pre-informed. It may also be helpful to furnish the mediator with the complaint, answer and any briefs that have been filed.

Both parties should be able to detail the damages that they believe are, or in the case of the defendant, are not recoverable. Claims for lost back wages and future wages should be detailed with reference to past earnings and future prospects. The plaintiff claiming lost earnings must be able to detail efforts to mitigate losses by finding employment. Also give solid facts relating to the availability of suitable alternative employment. Detailed information of collateral loss such as losing a home or a car because of being unable to maintain payments may also further increase the amount of the settlement.

In the case of a plaintiff claiming injuries for pain and suffering show that you have convincing evidence of the impact of the claimed injury on the plaintiff's life. Often the best evidence is the testimony of individuals close to the injured party. Spouses, parents, offspring and any others who are able to testify from first hand observation to such facts should be quoted. Indicate what their testimony will be as to the impact on the claimant's life style and activities. Provide the names of medications prescribed and details of the reports of health care professionals seen by the plaintiff.

The defense should also be able to present a damage scenario. Where there is a loss of employment, information should be provided showing the availability of suitable alternate employment for one with the plaintiff's skills, education and experience. If there has been a favorable IME it should be expounded upon.

There are occasions when counsel will be reluctant to reveal in mediation certain favorable information for fear of tipping the other party's hand. Counsel may not want the opposing party to be forewarned sufficiently to prepare a response to various evidence or arguments. This may well be advisable in some cases. However if it is truly a strong argument for your case it may induce the other party to offer more favorable settlement terms. Alternatively it may lead the other party to reveal arguments that it perceives will counter your position. Doing so may help you to determine if your arguments are as convincing as you believe them to be.

V. Clients' Concerns About Settlement

A. Principle

Not uncommonly litigants will hold fast to a position based on "principle." In fact very few cases establish principles and those that do provide little satisfaction to the litigant who pays dearly for it in litigation costs, time and resources invested along with the possibility of losing. It must be borne in mind that the latter is ever present to some degree in all cases no matter how solid they appear before being presented to a judge or the six strangers sitting in the jury box. The value of principle is likely as ephemeral as Falstaff's view of honor:

Can honor set to a leg? no: or an arm? no. or take away the grief of a wound? no. Honor hath no skill in surgery, then? no. What is honor? a word. What is in that word honor? What is that honor? air. A trim reckoning! Who hath it? He that died o' Wednesday. Doth he feel it? no. !Tis insensible, then. Yea, to the dead. But will it not live with the living? no. Why? Detraction will not suffer it. Therefor I'll none of it. Honor is a mere scutcheon: and so ends my catechism.

Shakespear: King Henry IV, Act 5, scene 1

And so the same with principle. It is not intended to demean the concept of principle but it should not be exulted beyond its true merit.

B. Confidentiality

Defendants often fear that news of a settlement, or at least news of any settlement that is more than nominal, will set them up as an easy mark thereby inviting a multiplicity of other suits. Plaintiffs will learn and come a running. I will not say that this cannot happen but it is seldom the measure of threat that it is perceived to be. Such a concern should not be the only consideration in deciding whether to reach a negotiated settlement. If there are other cases out there they can well surface on their own. Further settlement amounts are often so nominal that they are not sufficient to encourage copy cats. The settlement may be such a minimal amount that it will be nothing for a plaintiff to boast about.

Settlement agreements commonly have confidentiality clauses limiting to whom their terms may be revealed. Usually disclosure is limited to spouses, tax accountants and other professionals or pursuant to a subpoena. Where the reliability of the party's word is in question a liquidated damages provision may be added to the confidentiality clause. Such a clause may require the breaching party to pay a certain sum. Liquidated damages clauses have their limitation. They may not be enforceable. Further the breaching party may not be recoverable.

Even with the hazards of disclosure, the opportunity for a favorable negotiated settlement should not be passed up.

C. Precedent

There are cases where a party fears that a settlement may set a precedent in its treatment of like situations. Consider, as an example, an action for overtime compensation brought under the federal Fair Labor Standards Act. The employer may assert a defense that the plaintiff meets the requirements to be exempt from the overtime pay provisions of the statute. The employer may have other employees for whom it claims the same exemption. It may have concerns about having to pay back unpaid overtime to those employees and compensate them for overtime in the future. If such is the basis for an employer's decision it should carefully weigh the defensibility of its position. If it is going to be necessary to change practices it is best to do it quickly before more liability accrues. A defendant does not establish that it is a fortress against the type of claim at issue by losing.

Litigants should always consider what will be both the best case scenario and the worse case scenario if they proceed to trial instead of reaching a negotiated resolution. The best case scenario for a plaintiff is a win with a recovery in the range of what the plaintiff seeks. While such a prospect is appealing it is always far from a certainty. Even a victory may be Pyrrhic. The costs of litigation may eat into any recovery. When the plaintiff prevails there are possibilities of an appeal and perhaps a remand for a new trial with attendant delays. There is often the threat that an unsuccessful defendant will be uncollectible. The plaintiff's worse case scenario is a loss which may entail liability for the defendant's fees and costs in addition to the plaintiff's own.

The worse case scenario for the defense is the plaintiff's best case scenario with its attendant costs. In some cases a loss may be sufficient to bankrupt a defendant. The best case scenario is a win after a risky investment in the cost of litigation along with the time and effort expended. In some cases the defense may be awarded fees and costs, but they are not unlikely to prove uncollectible.

Both parties should consider that the time and effort spent in litigating may divert a party from pursuits that are more profitable or otherwise better able to advance the party's business or personal life. Taking into account all of the possibilities of failure to reach a negotiated settlement it is obvious that in every litigated case there is at least one loser. Not uncommonly there are two. D. Vindication

The client has strong feelings about his, or its position. The client wants that story told convincingly. A persuasive presentation of that story may put the client in a better frame of mind for reaching a resolution.

VI. Aids to Presentation

Trial lawyers are aware of the benefit of showing graphic information to fact finders at trial. The effectiveness of pictorially proving the strength of your case during mediation is equally applicable.

In some cases a party may have made a statement in a deposition or a document that is damaging to the plaintiff's case. It can be very effective to show a blowup of that statement in large, easily readable letters. A helpful portion of a statute or a quote in a reported case shown in the same manner can also be persuasive. In a case where the physical layout of a location is significant a blown up diagram of the area may be useful in laying out the facts.

A blown up ex-ray, anatomical drawing or other pictorial representation can be persuasive. When using a graphic presentation large letters at the to should be used to state what you wish to prove with it.

If you have authority supporting your case that you believe the other side is not aware of there are times where it will be helpful to have a copy to present to opposing counsel.

Photographs are persuasive in some cases to show damages to persons or property or to explain the physical setting of important facts. They will generally be more helpful if they are blown up.

In a variety of cases it may be persuasive to have physical objects present such as damaged parts or a sample of an object that is claimed to have caused damage. In one case where an individual was injured by a falling stack of large plastic waste containers her counsel brought an identical stack to the mediation to show how the accident occurred.

Power point presentations that tell a party's story with all its implications can be highly effective. The presentation can show examples of statements by witnesses or others, relevant law, photographs that explain aspects of the case along with any other matter that supports your case. One caveat. The printing on the power point should not be so small that it is difficult to read or so lengthy that it detracts from the oral presentation that goes along with the power point.

The foregoing is only a sample of what can be used in mediation to advocate the merits of your case while convincing the opposition that you are willing and able to present a strong case if the matter does not settle. The only limit is the creativity of counsel.

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