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| Milestone Consulting, LLC

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.

mediation copyThere 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?


  1. Gravatar for Lawrence Kolin
    Lawrence Kolin

    I've generally found the presence of experts to be disruptive to the mediation process, though there are times when it may be appropriate. The problem seems to lie in the adversarial nature of a battle of experts between parties that likely makes finding a self-determined resolution difficult.

    1. John Bair

      Lawrence, thank you for your comment. Do you have specific experience with settlement experts or settlement planners? Your perspective is certainly an experienced one. Often times the simple translation of hard cash offers to what that means in the life of a plaintiff as it pertains to their ability to pay their medical costs, replace lost income and survive financially post litigation is meaningful.

  2. Gravatar for Wayne Parsons
    Wayne Parsons

    I generally don't have the settlement expert do anything with the defense at a mediation. Most mediators don't let the two sides get together in my experience. I agree that confrontation and adversarial contact is not what is needed at mediation. But the settlement expert can help my clients understand the financial options presented by an offer, and he or she can help the clients and me see the true long-term financial picture that may be possible with a specific offer. I help my clients get the money and they use the financial planner to decide if it is enough and what they can do with it. It also can help me and my clients propose counter-offers that sometimes are creative because of what we learn from the financial planner (settlement expert). Its not so much about structured settlements but about my client working with a financial expert to protect their future and extend the settlement funds through planning. It’s a little more of a trek to have someone come to Hawaii but John has come to Honolulu and was extremely helpful in communicating with the clients on financial questions. He knows things we don’t about things that come up, or things that should be brought up and discussed with the clients and sometimes _ through the mediator without reference to any "expert" _ to the insurers/defendants. I think it’s an important thing to do in general if the case justifies it and my choice is always John Bair.

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