Just as with trial, mediation is all about being prepared. Bringing a settlement expert to mediation has a number of benefits beyond its part in building a comprehensive and robust settlement team. On the other hand, having an expert at this point may come with disadvantages in some cases. Needless to say, there are great trial lawyers who remain on both sides of the debate.
There is a common thread of reasoning as to why layers don’t bring their own experts. The unique process a client experiences is a huge consideration. Managing client expectations in a case is often already difficult without adding another professional to the equation. A lawyer also doesn’t want to confuse the client (and waste an expert’s time) if the case doesn’t settle. Logistically, it might be a hassle.
What message do lawyers send by bringing a settlement expert to mediation? In terms of defense counsel, a lawyer may be reluctant to bring a settlement expert for fear that doing so will send a bad signal. It could be seen as a message that maximizing recovery is not a priority, and that the plaintiffs are looking for a quick settlement.
Another big reason many lawyers avoid bringing a settlement expert to mediation is the lack of control over the opinion an expert may share in front of a mediator.
But there’s another way to think about settlement experts and their value in mediation. Bringing a settlement expert into the picture early on can be seen as being thorough, professional and prepared. Further, the expertise of a settlement planner may bring value in tough-to-settle cases.
Experts also help establish favorable relationships, which makes a huge difference when negotiating. With an expert on board, in-person or by phone, a lawyer can combat or manage the following:
- Low damage assessments of their life care plan
- Mandates of structuring in a low interest rate environment
- Client expectations about the money they may obtain and what it means
It’s important to remember that no one has to sound the trumpets when bringing an expert to mediation. In past mediations, some lawyers never introduced me as a “settlement expert” to the defendants and defense lawyers. Instead, they simply said an additional expert was there to interpret any offers made. In one case, for example, a client wanted to take a $9.5 million offer, but the lawyer felt he could obtain an even more substantial recovery. I was asked to articulate my expert opinion to the mediator as to why the offer did not fairly compensate for inflation. The family heard me as another one of their advocates, and my rationale armed the mediator with additional useful information. I believe it helped push the envelope with regard to why the case was worth more.
I learned a long time ago it’s difficult to score if you aren’t playing on the field. In this regard, it’s hard to be meaningful to a case without meeting the parties in person and building a real relationship. During negotiations, trust among the clients and lawyers is crucial. A settlement expert’s involvement during mediation can allow that trust to grow from that point until a case’s resolution.
What do you think? Have you involved a settlement expert in mediation?
A West Point graduate where he served as captain and military aviator, John Bair continues his commitment to our country through his efforts within the settlement planning industry. He has represented families of victims lost in the Flight 3407 crash, offered pro bono services to the families of 9/11 victims and drafted the first consumer protection bill for plaintiffs (H.R. 3699).