Host Sean Harris talks with plaintiff attorney, Eleana Drakatos, about what cases and clients are best for mediation.

Sean: Hello and welcome to Civilly Speaking, OAJ’s monthly podcast on practical and timely legal issues, I am your host Sean Harris. Our guest today is Eleana Drakatos with the firm Yacobozzi Drakatos in Columbus, OH and our topic today is generally mediation, but specifically what cases, evaluating what cases and clients are best for mediation, Eleana thank you for joining us here on Civilly Speaking.

Eleana: Thank you for having me.

Sean: So I guess we should start at the beginning, which is how do you evaluate a given case for its mediation potential?

Eleana: Well Sean, that is a real important question, and all cases are not cases that should be mediated. Obviously, the first thing that we do when we evaluate a case for mediation is to determine whether or not our client wants to mediate the case. Is it the right case for mediation and what are the risks associated with going to trial? That’s sort of an overview of how we look at a case globally before we decide whether the case is ready to be mediated. Obviously the number one concern is our client and our clients expectations and what our client wants out of the case and number two is does the defendant want to mediate, obviously you have to have two to tango in this kind of case and is it the right case. Do you have subpoena liability? Do you have a lot of risk involved? Do you have a lot of costs that need to be expended on the case? Are you going to get that out of the potential verdict?

Sean: And you mentioned kind of starting with our clients, and obviously it’s their case and they are in charge, how do you go about discussing mediation with your client?

Eleana: Well I think, let me go back and start at the intake. I think the most important meeting you have with your client is the intake and you ask your client what do you want from your case, I think my law partner recently had a client saying that I want 40 million dollars out of this case and we thought she was joking, but you know these clients sometimes not have a clear understanding of what is they want or what they can actually get.

Sean: And by the way you mentioned the intake, this is a conversation you have at the very first time you meet the client?

Eleana: At the very first we meet the client because honestly if you have done a lot of these cases we know how the story ends. So you want to talk to your client from the very beginning, you want to tell them hey what is your expectation, what do you want out of this case? There are some clients that tell you, “I want my day in court,” and we have had a lot of those clients and maybe those cases are not the right ones to mediate and then you have clients that say, “I am scared of court, I don’t want to tell everyone my story, I don’t want all these people knowing my medical issues,” if you are trying a personal injury case or a medical case, so maybe those cases are the ones to mediate, but you as the attorney have to have a clear understanding of your clients expectations from day one, from day of intake. So then when you go do the road and you prepare your case for mediation, whether that is you know a year, two years, three years post intake you go back and say hey remember we talked about this and let’s see how the case has progressed now, do you still want the same thing?

Sean: I have even heard of lawyers who make a specific notation during the intake of whatever exactly it is that they say, so that when it comes time to review an offer, whether it mediation or otherwise, and you’re obtaining what they suggested they actually wanted, when you see, Oh I have gotten what you wanted now you changed your mind well, remember what you told me initially when we first met, alright so that’s not true anymore..

Eleana: Right and not in a hostile way, but in a way where you know you have the come to Jesus talk with your clients saying hey you know when you came in here, you know your case is always going to look the best in the beginning when the other team shows up, and then things start changing either for the better or maybe sometimes for the worst, but maybe sometimes for the better but, you want to actually have that discussion with your clients say why have the expectations changed now that we’re entering into a phase of the case where mediation is a possibility.

Sean: So assuming that your client agrees to go to mediation, what do you do to prepare your client?

Eleana: Well, when I first started practicing I didn’t really do a whole lot, and I come to find out maybe that’s not a good idea, but no what you want to do with a client, what we do now, is I prepare the client with a separate meeting. We meet face to face and we talk about everything logistically and I start from whose going to be our mediator to what are you going to wear, to what is the expectation, to the client understanding that this is not a court proceeding, this is a confidential conference that we have by agreement of parties, no one is making you do anything you don’t want to do, and you have to agree that you will accept an offer and resolve your case. I think all that needs to be explained to the clients so they know what they are going into. How you present and what the format is going to be of the mediation.  A lot of times we have mediations that are conducted by judges, a lot of times we have mediations conducted by magistrates, sometimes you have your own private mediator, so the client needs to have an understanding of the format of the mediation before they go there. Am I going to have to say anything, is a question I get from clients a lot. Do I have to do anything? Well, you have to look professional, you know you can’t come looking like you are going to go to a football game or you’re going to mow your lawn. You have to look professional and make a good appearance. So all those things I think are important to go over with the client and what I also do in a lot of these instances or a lot of these meetings, is I go over my mediation statement with the client. So here’s what our mediator knows, here’s how I have explained the case, here are your damages, and here’s what potentially would get to trial and explain the risks associated with trial, explain to the client what have we spent so far in the case, if you have a complex medical case or a complex tort case, you we’ve spent $40,000 on your case and we’re sort of half way there, maybe we need to spend another 10 or 20 are you willing to do that, are you willing to take that risk to go to trial and I think all that is laid out at a meeting before mediation.

Sean: Do you try and predict where the defense will come in with numbers for your client ahead of time?

Eleana: I never try to do that. I personally don’t feel comfortable doing that, unless I have some indication from the defense on where they might come on. Sometimes defendants, especially in cases where you have multiple defendants, some defendants will come in and say, well we are only going to pay a cost to defend offer or we’re going to pay very minimal. If that is the case, I prepare the client and tell them. If there are med mal cases and the clients or I know that the…

Sean: Now wait a minute, people mediate med mal cases?

Eleana: Sometimes, I’ve had one recently mediated, but there was an issue where actually the judge mediated the case, it was a little awkward, but just the whole case was a little awkward, but it was mediated, it was resolved, but there are other issues with reporting’s so sometimes doctors may say I don’t want to pay over $25,000 because then anything after that has to be reported, I don’t want to pay, I don’t want to have this reported, all that has to be explained to the client and what it means for the defending doctor to have to report to the national databank, that has to be something the client  understands before going into mediation, if of course the attorney has had that discussion with opposing council.

Sean: Now you mentioned the selection of a mediator, whether it be public or private, how do you decide which one to use in which type of case?

Eleana: Well, in certain cases rarely, if ever have that happen a handful of times, there are some judges that will mediate cases, if parties agree and sometimes if parties don’t agree, they’ll say hey show up there’s a mediation happening those obviously we have very little control over in those particular cases and those cases tend to you know, tend to resolve generally because I think the judge with the rob has a different sort of impact on the litigant. Now personally, I rarely use the magistrates for mediation, especially if there a complex issues. I have used magistrates before, I have settled probably all the cases I have used with the magistrates as mediators. They are not bad. I prefer to use private mediators.

Sean: And why is that?

Eleana: Well I think there is more preparation on the part of the mediator, I think the mediator knows a lot of the issues, all the mediators we use are practicing lawyers, whether they are defense or plaintiff, I have used both and I’ve been happy with both. I think that the mediator, the private mediator can have more of an impact on the litigants, bringing in personal you know tips, personal experiences, knowing the issues as opposed to just having a mediator that carries water from one room to the other. That is not helpful to anyone. I’ve had a case a long time ago with my former firm where the mediation was court mediation and there were opening statements and that is I think the absolute worst thing you can do.

Sean: I was going to ask you about that. What’s your position on opening statements at mediation?

Eleana: I hate them and here’s why. We all sat around a table, there was this mediator, a court appointed mediator we all sat around a table we presented our case about how our client was hurt in this particular accident and then the defendants presented their case and then the mediator thought it was a good idea to ask the litigants to say something. And of course the defendant deriver preceded to say how my client was a faker and wasn’t really hurt and  it started off so badly because that made the plaintiff even more mad, how dare he say I am faking and it turned out to be, that case turned out going to trial and it turned out to be a wonderful plaintiffs verdict and I think that was my first jury trial ever and I think Dan Abraham looked over and said, this isn’t how these go, this is not the norm so I just you know it just ended up being a total mess and I think it all started animosity, started between the litigants in that particular mediation conference where the litigants were allowed to say what they really thought.

Sean: And that’s always the concern right that the parties hearing the other side entrench further into their positions and that would be counterproductive to mediation. I will tell you that I recently heard a counter argument to that and I would be interested in your thoughts and that is as an advocate, where in litigation where the ultimate result is a trial in front of a jury that opposing council needs opposing council needs to see your presentation because it’s a preview of what will be at trial, so they need to know what their up against. That was an interesting perspective that I hadn’t considered before.

Eleana: I can’t say I have either, considered that, I don’t know that I would really want to give my trial presentation to opposing council, but I would not be necessarily oppose to discussing the issues with the opposing attorney in the presence of the mediator, but I just don’t think it’s very effective when you have the litigants there talking about the case in front of them and talking about them as if they’re not in the room. I just think that is makes for a very bad climate in the room and psychology.

Sean: Certainly, if the goal is a resolution, right a compromise that probably makes sense.

Eleana: Right.

Sean: Well we have talked about preparing our clients, talk to us about how you prepare the mediator and/or opposing council through a premeditation statement.

Eleana: So every mediator has I guess his or her own requirements on how they want to prepare for the case and say give me a mediation statement the night before, some say give me a mediation statement a week before. Almost all that I have used want to mediation statement. I prefer to write out a confidential mediation statement, which lays out my case and if I have a mediator that I actually trust and have mediated cases with before I will sometimes lay out the bad things about my case. I will say you know the defense has a really good liability argument here because this and this happened because I want the mediator to be prepared going in and to be prepared with all the issues and try to say okay plaintiff, you know you have these pros and these cons and you need to make some decisions here, so I like doing that. I like giving the mediator a sort of organized statement where I start off with here’s what my case is about, here’s where we are procedurally; I think it is very important to tell your mediator when your trials scheduled. You know if you have a trial a year and a half from the day of mediation there is really no incentive for the defense to try to get a settlement resolved because they have another year and a half to bill so there really not going to push their clients for mediation so trial and procedural posture of the case, trial date is important for the mediator to know because they can get an idea of how close we are to the finish line. I think it is important to lay out all medicals and of course your non-economic damages in a non-boring fashion. You don’t need to tell your mediator how many physical therapy visits your client had in great detail, but generally giving them an idea of what the medical profile is and also what the future, future damages might be, the future losses, and also those non-compensatory type damages or non-economic damages and also have all your numbers, you got to have your numbers.

Sean: And you mean liens?

Eleana: Liens, absolutely. You can’t call Medicare the day before your mediation and expect to have a lien. It’s not going to happen. So all that needs to be laid out because the worst thing is well my Medicare lien may be 8,000 or it may be 20. That’s not really going to help you resolve your case. So make sure you have all those numbers and you give all those numbers to your mediator beforehand and like I said I prefer a confidential mediation statement..

Sean: I was going to ask you about that, why confidential?

Eleana: Well I guess I should say it depends on the case. If the issues are pretty straight forward or if I feel like I want to make that sort of my trial argument that you mentioned earlier, maybe not in person in writing to the defense I may do a mediation statement. Now, some mediators I have used want me to do a shared mediation statement. They said no I want the other side to see what you have to say and I will do that. Some mediators have no preference, now if I have a situation where the medical profile may be a little problematic, if my client has pre-existing problems and I want to let the mediator know that, but I don’t want to tell the defense hey I recognize all these issues about my case, that may be a time when I prefer to do a confidential statement.

Sean: And so Eleana when you’re talking with your client about the prospect of mediation how does the issues of expenses in your case factor into that? That is how much you spent on your case to date.

Eleana: Right, I think that’s a very important component of any case that you do on contingency fee bases, where the firm advances the cost or even when the client pays the cost. I think it is extremely important to let the client know that, case expenses come out of their portion of the settlement, case expenses are a serious consideration, especially when you have complex, complex cases. If you have an intentional tort cases as you know you are going to need liability experts, you’re going to need damages experts, cause when you are taking those cases you’re taking high damages cases. If you are going to prosecute an intentional tort case you’re going to need an economist, you’re going to need a vocational guy, you’re going to need a medical doctor, you’re going to need a psychologist potentially, so you’re talking just your damages expert, experts are going to have a significant price tag. Not to mention all your liability experts. So when you are talking to the client and you’re telling them hey you know we’re looking at spending another 20-30 grand on your case, how do you feel about that?  What do you think, do you have it? Because clients that have no skin in the game, a lot of times and no risk, are going to say sure I don’t care go out and spend, it’s your money, but that needs to be explained to them that no that’s really going to be coming out of your portion and if you know you feel that way we need to have a discussion about what our expectations are out of the case. So I think that’s very important. I don’t think a lot of times we have those discussions with clients and especially with med mal, I mean you’re talking you know just to get your foot in the door at the court house you’re spending 3-4,000 dollars for reviews and all that I think needs to be laid out to a client.

Sean: Eleana Drakatos thanks very much for joining us here on Civilly Speaking.

Eleana: Thank you for having me Sean.