With courts still closed, many cases are headed to mediation that may have otherwise gone to trial. This means that your client’s future depends on how well you do at mediation. To maximize your outcome, you need to put effort into preparing for mediation just as you would for trial. What do I mean by that?
Mediation is a back and forth argument over what your case is worth. “Worth” is determined in part by the potential outcome if you did hold out and wait for a trial (among other things such as your client’s need to settle or willingness to go to trial). To convince opposing counsel (and their clients) that you will prevail at trial, you need more than a simple self-serving statement that your case is strong and that you are likely to win. You need evidence of your claims, just as jurors would want evidence of what you claim in trial. That means asking “jurors” about their views on the case and presenting that evidence to opposing counsel at mediation.
In non-pandemic times, we would run some toned-down focus groups for the purposes of mediation. In current times, we do the same, but move them online. While there are some drawbacks to online research, those issues are very minimal when you are looking to do something that is on a smaller scale than a full blown mock trial. For example, we can recruit 20-100 individuals to review written statements about the case and answer online questionnaires about their opinions. This information can be given to opposing counsel to show that jurors are likely to find in your favor and that the range of damages are closer to your figures. We could also conduct a mini focus group online where jurors view video footage and evidence and are given the chance to give independent feedback along with a short group deliberation. If the information you learn is not favorable, you never have to mention it but it will still guide you in whether you have to settle and for what amount. If the information is favorable, you can present it during mediation. These online projects can be extremely affordable and tailored to your budget.
With so many cases settling in this climate, you need to maximize the opportunity for yourself and your clients.