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LEGAL CENTS: The dos and don’ts of cost-effective mediation

By: Jane Pribek//November 21, 2011//

LEGAL CENTS: The dos and don’ts of cost-effective mediation

By: Jane Pribek//November 21, 2011//

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Jane Pribek

Brookfield attorney Dawn Drellos-Thompson realized a few years ago that her small business owner or minimum-wage earning clients could not afford most mediators.

So she started a separate mediation practice, charging half or less of the Milwaukee-area market rate. She provides flat-fee mediation without time limits:  $250 for small claims of $5,000 or less, and $350 for claims between $5,000 and $10,000. For large claims, she charges $95 an hour.

It doesn’t look like lots of attorney-neutrals are following Drellos-Thompson’s lead, however. I get that. They’re highly skilled and probably can make more money practicing law. But, I suspect she’s right that there are lots of people who can’t afford mediation, especially now.

Hiring an inexpensive mediator is one fairly obvious way to save money on mediation. Other no-brainers include:

  • Bypassing mediators who charge “administrative fees;”
  • Using bar association or court-sponsored programs, if available, such as in Dane and Winnebago counties;
  • Negotiating flat fees or reasonable hourly rates;
  • Hiring nonlawyer neutrals, in appropriate cases;
  • Traveling to the mediator, rather than paying his or her travel expenses plus hourly rate.

The more complicated way to save money on mediation is to hasten the pace of the mediation, but this involves strategy. Some tips:

Do prepare your client by educating her on how mediation works and your particular mediator’s style. Madison attorney/mediator Mike Crooks said he was not inclined to bring everybody together at the outset to explain the mediation process because insurance companies had heard it a thousand times. If you’ve counseled your client about it and his preference is to bypass that, the real work can get started sooner.

Don’t bring multiple family members, Crooks said. Bring the plaintiff and one support person, at most.

Don’t bury the neutral in paper, Milwaukee mediator Bill Jennaro said. Unless you’ve asked for mediation-arbitration, he doesn’t need every pleading.

Do submit and exchange expert reports, Crooks said, or opposing counsel will feel ambushed seeing them for the first time at the session.

Do keep your pre-mediation issue summaries short; no more than three pages. “After all, the Gettysburg Address was written on the back of an envelope,” Jennaro said.

Don’t wait until the day before the mediation to submit the materials, Appleton plaintiffs’ attorney Kevin Lonergan said. There likely are multiple decision makers at the insurance company and there’s no way they’ll all duly consider what’s been submitted in those few hours before the mediation.

Do call the mediator, if the custom in your part of the state is to exchange submissions, Milwaukee attorney-mediator Russ Ware said. Tell him about the angry plaintiff or the tightwad defendant. It’s confidential, and then the mediator immediately can address those roadblocks, instead of having to discover them himself.

Do talk to the subrogated carriers beforehand to discuss the case, Crooks said, so they don’t have to make that call during the session. It’s even better if you’ve already settled their claims.

Do telephone opposing counsel beforehand, as well. Crooks said he often was amazed when an attorney says, “I wouldn’t have come if I knew they’d offer nothing,” but then admits he or she didn’t call opposing counsel before the mediation.

Do ask the mediator to question the plaintiff in the defendant’s presence, assuming you’ve got a likeable, credible client. When the client is an “open book,” the adjustor can see that he or she will make a favorable impression on a jury.

Don’t work against the mediator, Crooks said. You can be a zealous advocate without calling into question every word the mediator says.

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