A friend and I recently discussed trial lawyer Nick Rowley’s book, Running With The Bulls. Nick has a unique and compelling approach to mediation in his personal injury cases. In some cases, he will refuse to attend mediation. A reasonable settlement offer from the defense is a prerequisite to Nick agreeing to attend mediation. He chooses the mediator and makes a pre-mediation demand that expires on the day of mediation, meaning the plaintiff’s demand will increase if mediation fails. He insists on the ability to communicate during mediation with the real case decision-makers (insurance company representatives) rather than through the defense lawyers.
No doubt Nick's approach is highly effective for his type of work. There are key differences between mediation in personal injury/plaintiff’s cases and domestic relations (family law) disputes, including:
Judges can order family law litigants to attend mediation in good faith, so not attending mediation is not viable.
Attempting settlement (or not) may be reviewed by a judge exercising hindsight to assess whether one side behaved unreasonably during litigation of the case as part of an attorney fee request.
Family law cases are fluid, with evolving facts and changes in circumstances in real-time, while injury cases almost always involve events in the past.
My law firm has developed a process for handling cases, including how we approach mediation. The process can vary depending on when the client engages us. Sometimes we receive and handle the case from the beginning before filing, allowing us to work the case up the way we prefer. Still, we are often hired after mediation and even sometimes days before trial, well after a final pretrial conference order has been filed. Even when we’re hired late in the case, if the circumstances permit, we’ll still try to implement our process compressedly.
A summary of my process
Make a written settlement offer as soon as possible. What “as soon as possible” means depends on our access to information. Sometimes we know enough about the situation to make a settlement offer when we file the case, but most of the time we need to conduct discovery. Either way, before mediation, I want to make a complete settlement offer in writing, ideally in the form of a consent decree (as opposed to a settlement letter).
I do not fight over who is the mediator, with very limited exceptions. There are a few idiots who purport to mediate cases but have no idea what they’re doing, so I will not use them. Otherwise, I view mediators as fungible. I will initiate the conversation about who will mediate the case by sending over 3 or 4 names, with a comment that I’ll be open to a different mediator not on that list, so long as the proposed mediator is qualified and neutral.
Before mediation, I share our written settlement offer with the mediator and 3-6 pieces of information that are critical to our case and support the offer. That information can vary and include documents, photos, testimony, or discovery responses. I’m conscious about limiting what I share because experience has taught me that the more information I send, the less likely a busy mediator will read it.
If the mediation session results in the settlement of part or all of the issues, I’ll memorialize that as a court order as soon as possible. The common practice is for the mediator to write a one-page outline of the topics resolved by the parties. Those summaries are generally so vague that they are unenforceable if one side decides to renege on the deal, so I want to capture the agreement with a signed consent order.
I want to mediate even in the most high-conflict cases with a low likelihood of settlement. I always learn things from the mediator about the other side that I didn’t know already, including the relationship dynamic between my opposing counsel and their client, the motivation of the opposing party, and insight into the other side’s theory of the case and any evidence supporting it.
I’ll mediate twice. I’ll mediate thrice. Mediation is expensive, but it costs very little compared to a trial. I especially want to mediate if the case was mediated before my involvement because my prior counsel did not inform the client as I would have, nor was the mediation approached in my way.
If mediation fails, I’ll make another written settlement offer. Depending on the circumstances, the offer may be identical to the pre-mediation offer, or it may be different. I don’t like expiring offers, so I’ll pitch it as an open offer to resolve the case anytime before the trial.
I view mediation as risk-free. Only good things can happen, even if there’s no settlement. Making a written settlement offer can psychologically affect the opposing party at trial by creating a risk of not beating our offer. Mediation has no downside if you’re prepared and understand the value.
The curse of knowledge is a fascinating condition that impairs our ability to relate and communicate with others. I’ve seen the curse of knowledge in legal disputes, and it can be a real trap for the unwary.
You should only make a settlement offer when you know enough about the strengths and weaknesses of your case to make an informed decision. In the same vein, you should (generally) only go to mediation if you’re positioned to make a deal — there’s no point in going if you don’t have what you need to resolve your case. So you have to prepare, be confident about the facts, and know your limits to compromise.
The paradox here is that preparation can be a disadvantage due to the perverse incentives of our system, especially in family law. Some highlights:
Cases are only resolved one of two ways: by settlement or trial. Trial is expensive and risky, so an uninformed, unprepared, or even malicious participant may not negotiate in good faith, hoping you’ll enter into a less-than-ideal resolution to avoid trial's expense and public exposure, regardless of the strengths and weaknesses of your case.
Anyone can claim anything, especially in family law, with no evidence in support, and with any exposure to fee-shifting not guaranteed and deferred months or years down the road.
Mediation is private, and there are no rules. There’s no immediate downside to an unprepared or malicious participant taking unreasonable positions to manipulate your position and throw you off. No one will ever know.
Because of the curse of knowledge, your superior preparation can be a drawback if you’re not careful. You cannot unknow what you know, even when you realize you’re dealing with an ignorant opponent. So you go in with an idea of what is fair, reasonable, or 50/50, but you’re facing a rogue opponent without that knowledge and the mental restraints of that range of information. You may know that $1.5 million is half the total amount at issue and a reasonable outcome, but then you receive a demand for $20 million with no factual basis. Put another way, they are not impaired by reality, so they feel free to take wild moonshots. If you’re realistic and try too hard, you’ll bid against yourself because your opponent isn’t appropriately engaged or acting in good faith.
How do you counter the curse? Be very clear about the facts and the numbers, and use that information to define the limits you can agree to. Do not assume that your adversary has done a fraction of the work you did to prepare for the session. Try to find out what the other side doesn’t know and use the mediator to relay factual data to the other side to reset their expectations. Review and consider any verifiable information you receive during the mediation session. Don’t deviate from your position unless the other side participates realistically — meaning don’t even entertain crazy. Understand that you have other options for resolution, including settlement outside of the mediation session and trial. You should remain mentally willing to walk and even propose returning to mediation once the other side understands and appreciates the facts.
This is part of the reason I often agree to mediate a second and even a third time. After an unsuccessful mediation, my team revisits our trial preparation to prove our claims and disprove and rebut what we heard in mediation. If the client attended mediation with a different attorney and hired us later, I’ll absolutely go to mediation again. It’s a virtual guarantee that the experience will be completely different. We’ll bury the other side beforehand with trial evidence they’ve never considered because the client’s previous attorney didn’t: photos, recordings, timelines, and maps.
I like going to mediation especially when the other side is unreasonable and has weaponized the family law process. Even if multiple sessions are unsuccessful, I’ll be planting the seed of doubt in the opposing party’s mind to impact their performance at trial adversely.
How can a litigant weaponize a process? The law that applies to family law cases is vague and amorphous. The legal standard for assessing which parent should have custody of a minor child is “best interests.” What does that mean? It means anything you can imagine, on a case-by-case basis. The legal standard for dividing marital property is “fairness.” What does that mean? It means what is fair under the circumstances. Throw in protective order laws which allow anyone claiming domestic violence to make an allegation at no charge, without the need for a lawyer, apply the lowest burden of proof possible, provide that if the judge believes the claim, the claimant automatically receives custody of any minor child involved and an automatic award of attorney fees, and bar the judge from assessing attorney fees against the claimant if the judge doesn’t believe their claim. You’ve created the perfect storm where every participant is incentivized to make false allegations risk-free.
A former client called me five years ago and said, “My wife needs some help.” His wife was the attorney-in-fact for her brother, Chris, (my former client’s brother-in-law), who was in prison for the second time.
In the 1980s, Chris married a lady with a young daughter from a prior relationship. Chris was the only father that the girl ever knew. The daughter was disabled, and even when Chris and the girl’s mother divorced in the 1990s, Chris and his family stayed in contact with the girl and helped care for her.
Chris owned a home in Sand Springs. When he went to prison the first time, after his divorce, one of his cousins fell on hard times and asked if she could stay in his home while he was incarcarated. He agreed, provided that she kept the house up and made the (very low) mortgage payments as rent while she occupied it. She did so, and it worked out well for both of them.
Years later, while in jail awaiting trial for his second round of charges, Chris’s ex-wife came to see him. She knew about his agreement with his cousin in the ‘90s, and she told Chris that she and her daughter were losing their apartment and about to become homeless. Concerned about her daughter’s wellbeing, Chris told his ex that if he was convicted, he’d give her the same deal that his cousin had: keep the house up and pay the mortgage payments. She agreed, he was convicted, and she moved into his house with her daughter.
After a year or so went by, one day Chris received a special package in the prison mail. He’d been served with a lawsuit filed by his ex. She claimed that he’d verbally gifted her the house. Chris was shocked and felt defenseless. He executed a power of attorney for his sister to act on his behalf, and she was his only hope.
Chris’s sister hired an attorney in Sand Springs, who filed a motion to dismiss, asserting that real property cannot be gifted verbally (this is true). The judge denied the motion to dismiss. The case then sat for over a year. Then I got the call to close out the case.
The judge ordered mediation prior to trial. I attended mediation with Chris’s sister. I saw Chris’s ex as we entered the session. She had a determined look on her face, and her first offer in mediation was that Chris could go straight to hell and stay there. Through his sister, Chris made a series of cash offers all the way up to $50,000 cash with the right to remain in the home for months. She rejected every proposal. “My house.”
His ex made a critical error. She filed her lawsuit and entered mediation with nothing to lose: she either wins a free house, or the case ends and she returns to the exact status she was at before she filed. Chris gave her something meaningful to lose. If she’d accepted Chris’s offer, she would have been $50,000 richer. Now we were heading to trial, and she had something to lose: $50,000 cash.
It affected her. Her attitude in the courtroom was different than it had been through the entire case. Chris was transported to the trial from prison, and he was a terrible witness. But so was she. She was nervous. Her testimony was inconsistent. Subconsciously, she knew that she had to beat our offer for that trial to make sense.
And Chris won.
So I’m willing to mediate, even when dealing with a rogue actor. The mediator will have our written settlement offer and the critical evidence supporting our position before the mediation begins, then the other side will have some tough decisions to make.
I’ve written separately elsewhere about the overall litigation process, including the stark differences between pretrial work (discovery and negotiation) and courtroom advocacy in trial. Most lawyers wait until after mediation fails to start thinking about trial. In my view, that’s a mistake.
When I take a case to mediation, I’m as ready for trial as possible. Even though mediation is private, I’ll still learn things about the other side’s position that will help me refine evidence for the case if we don’t settle. We’ll stress-test the case at mediation, and a failed mediation session will serve as a springboard to launch the case on a fast track to trial.
