Mediation Strategies from the Defense Attorney Perspective

Many thanks to James F. Bleeke of SweetinBleeke in Indianapolis. He provided me with the article Mediation Strategies: What Plaintiffs Really Want that was very insightful for many reasons, not the least of which is that it suggests depositions can be used as a mediation tool. Counterintuitive…Right? Not really…

Jim points out that there are many key motivating factors for plaintiffs as they struggle through the litigation process and head toward mediation and trial. He suggests that those factors are as follows:

• Money
• Being heard
• Getting an explanation of what happened and why
• Vindication
• Helping future individuals avoid the same fate
• Punishment/revenge
• Teaching the defendant a lesson
• Assuaging personal guilt
• Wanting the whole thing to be over
• Avoiding trial

Jim feels that it is important to figure out which factor is of primary importance to the plaintiff and he sometimes utilizes depositions to figure this out. He is not suggesting the use of “gotcha” questions and coercive tactics during deposition. Rather, he encourages the use of feeling or emotive questions which put the plaintiff at ease and may encourage the plaintiff to open up.

For example, questions such as “how did the incident make you feel” and “what led you to initiate this lawsuit,” even if objected to, may allow the plaintiff to recognize that their feelings are valued, respected and sought and that the defense may not be as horrible as expected. This can serve to open doors at mediation that might otherwise have been slammed shut and may allow mediation day to be productive from the very beginning. Now wouldn’t that be nice?

There is much more to Jim’s piece and I invite you to read it in its entirety. Thanks again, Jim.

- Sandra C. Upchurch supchurch@uww-adr.com