The case, like many others, began with a motor vehicle accident, in which the defendant had conceded liability, but disputed the nature of the injuries and the extent of necessary and related medical treatment.
Although there had been no substantive pre-mediation settlement negotiations, the attorneys involved exhibited a cooperative attitude towards resolving the case. Somewhat unusually, they had agreed to attempt early mediation, without the benefit of the parties' depositions, medical experts, or much other discovery, in order to save their clients the time and cost of litigation. I spoke to each attorney in preparation for the mediation, and each agreed to share their mediation brief with the other side. Indeed, the attorneys had a lengthy telephone conversation with each other prior to mediation, presumably in order to determine common ground as well as points on which their assessments differed.
Both attorneys came to the mediation knowing that they would have to proceed with discovery in the event that mediation did not resolve the case. Both appeared to believe that there was a slim chance of settlement, especially given an offer prior to mediation that was substantially lower than the plaintiff's alleged medical specials.
But both attorneys were clearly prepared, and had prepared their clients as well. Both were willing to work hard, take the other side's arguments into account in their negotiations, and spend a little additional time when they believed that it would result in a mediated agreement. Neither tried to hide facts or arguments, or to use mediation as a discovery tool. Neither was afraid to let their client or client's representative speak to me, and neither was opposed to meeting the other side in a brief joint session if I suggested that this could potentially move negotiations forward. (We did not conduct a joint session, but the two sides did meet each other of their own accord after the final paperwork had been signed.)
This was not a case involving the "Settlement Drift" mentioned in my prior blog post, but rather the opposite. Attorneys are not always prepared, cooperative, or willing to seriously consider the opposing party's point of view. When they are, however, even difficult cases can result in mediated settlement agreements, and clients win by being able to put the lawsuit behind them.