Trenam’s Mediation Newsletter: Using Experts in Your Next Mediation
“If you think adventure is dangerous, try routine. It’s lethal!
Sometimes we can get set in routine ways in our approach to mediation. We write a mediation summary and send it to the mediator. We speak with the client and prepare them for what they can expect in terms of protocol and potential settlement ranges. We organize our presentation, sometimes with a PowerPoint and other times with notebooks full of critical documents and information.
Oftentimes, in order to be successful in mediation, we actually need to think and act outside the box. One thing lawyers rarely do is actually bring an expert witness to the mediation or make the expert available by video during the mediation. Another approach is to make big board demonstrative exhibits of the expert reports, graphs or deposition testimony during your presentation. In cases involving construction defects, eminent domain matters, and/or medical negligence and personal injury cases, focusing on the conclusions of your experts can be critical. Whether it be a radiologist, an expert witness in infectious diseases, an appraiser in an eminent domain case, or an architect or engineer in a construction defect case, the battle of the experts can make or break the case.
Accordingly, actually bringing your expert to make an efficient but compelling presentation (and then leave the mediation) can not only impress the mediator, but can also impress and surprise opposing counsel and the opposing party. The expert presentation could improve your chances of success at mediation.
We know that only parties to the mediation are permitted to attend. Thus, obtaining approval from the other party or court approval, will be necessary to permit an expert to attend. Any stipulation should address whether an attending expert would entertain questions solely from the mediator or from the opponent as well.
One approach to consider is to have the expert appear via video conference or Skype, where advance notice is not necessary so long as the parties agree to allow it once the mediation begins. Another approach, of course, is to videotape the expert’s deposition or presentation and show clips from the most important questions and answers with conclusions and opinions at the mediation.
The main point of this article is simply to highlight the need to present what could be the most important testimony and information in the case (i.e., the experts), and to focus on that during the mediation presentation. Of course, the underlying theme is to simply challenge yourself to be creative at each and every mediation and not get trapped by being set in your routine ways.