Choosing Your Focus at Mediation

I’ve been thinking a lot lately about how advocates select the arguments they will emphasize at mediation. I think most advocates start with their strongest argument in the same way they would structure a summary judgment motion or pre-trial brief. This is intuitive and feels natural most of the time but is it the right approach for mediation? Remember, at mediation the goal is not to convince a judge or jury to decide a case in your favor. The goal is to convince the other side to move in your direction as far and as fast as possible. This leads me to think that when advocates think about making their case at mediation, they should be thinking about what is most likely to resonate with the other side. If you think about that, you may come to some surprising decisions. If, for example, you are a policyholder with a claim for coverage and a related claim for bad faith, you might be inclined to spend a lot of time on the bad faith conduct. But what if the adjuster attending the mediation with authority is the same adjuster you are accusing of the bad faith conduct? Will the adjuster be able to take that in in a dispassionate way and adjust his or her thinking? The same may be true in reverse. If an insurer has several coverage defenses but also a rescission claim, but the decision-maker on the other side is the same person who filled out the insurance application that the insurer believes may contain a misrepresentation, how effective will that be at a mediation? I’m not sure there is a consistent right answer in either of these scenarios. But I do believe that taking into account who you will be negotiating with and what their role in the dispute has been up until now should be a critical part of mediation preparation and an important part of the private session discussions with the mediator.