What Mediators Wish Lawyers Would Do Before the Session -Part 4: Evaluate Risk Honestly

Here’s another thing mediators wish lawyers would do before mediation:

Prepare to evaluate risk honestly—not just advocate.

Lawyers are trained to identify the facts, law and evidence that support their client’s position.

But mediation requires something more.

The lawyers who are most effective in mediation are able to make an important shift: from advocate to evaluator.

That means being willing to look at the case through a different lens.

Healthcare liability cases make that particularly important. These cases are rarely as simple as one side being entirely right and the other entirely wrong. The medicine can be complicated. Experts can disagree. A strong standard-of-care argument can be accompanied by a difficult causation issue.

Every case has a best-case scenario. But every case also has a worst-case scenario.

Effective mediation preparation requires understanding both scenarios can happen.

Before mediation, lawyers should ask themselves:

• Which fact or piece of testimony concerns me the most?

• Where is my expert vulnerable?

• What could a jury see differently than I do?

Those questions allow the lawyers to evaluate their cases honestly and responsibly.

There is a time to advocate and a time to assess.

Preparing for mediation therefore means you need to help your client understand why you should win and be as equally prepared to help your client understand what happens if you don’t.

That isn’t giving up on the case, it is understanding the risk of continuing it.

Our next and final post in this series will be the one last thing mediators wish lawyers would think about before the session begins. Any guesses?

And don’t forget to call me today to schedule your next mediation at 407.493.0899 or book me directly on my Appointments page.