First published in SFTLA Magazine, May 2004
In both mediation training and mediation, countless plaintiffs’ counsel and mediators have complained to me about how frustrating it is to mediate with insurance adjusters and their counsel. They grumble about being powerless to influence the insurer’s view of a case at mediation. While I agree that negotiating with insurers in mediation is challenging, I disagree with the conclusion that plaintiffs’ lawyers are powerless. Throughout a thousand-plus mediations, I have become a practiced observer of what works. Assuming the case is reasonably strong, the opportunity to showcase a stellar plaintiff presents the plaintiffs’ lawyer with the most significant opportunity to influence the insurance company favorably.
With the exception of the bad case, which even a perfect client can’t make better, over the years I have seen adjusters become more flexible in mediation when they judge a client to be a good person. Although adjusters do change their positions because a good person will make a good witness at trial – a sufficient reason on its own to showcase a stellar client – I am not writing about the obvious here. Rather, I will emphasize a subtler phenomenon: We are more generous with people we like. In scores of personal injury mediations, I have observed that an insurer is vastly more likely to loosen the purse strings for a plaintiff the adjuster believes to be a good person than for one she doesn’t like or is neutral about.
But don’t take my word for it. Social psychologist Robert Cialdini, in his book Influence: The Psychology of Persuasion (New York: Quill William Morrow, 1993), identifies “liking” as one of the six universal principles of influence. According to Cialdini’s research, we most prefer to say yes to the request of someone we know and like.  In my view, a “likable” client is a stellar client. She isn’t necessarily articulate, intelligent or outgoing. She simply radiates three qualities: integrity, presence and an ebullient spirit.  I mean radiates integrity in the Justice Potter Stewart sense: You know it when you see it, as distinguished from gathering confidence in a plaintiff’s integrity with time and experience. Insurers will be with your client only briefly, so integrity must be communicated by the client’s nature. Likewise presence, the poise and effectiveness that allows the client to relate positively to others. In part the ability to pay attention and listen to others, in part the capacity for curiosity, presence attracts. An ebullient spirit comes across as strong in the face of adversity. Though injured and perhaps suffering, the client is not defeated or bitter.
Suggestions for Showcasing
While lawyers know instantly when they have a sweetheart of a client, they don’t always take full advantage of the opportunity to make her the most visible in mediation. Doing so requires skill and preparation. Here are some suggestions:
1. Let your stellar client talk freely and frequently, within her ability and willingness to do so. Stay in joint session as long as possible, and resist the urge to stand in the spotlight yourself. Use your presentation to inform the other side about the legal framework and your analysis of liability and damages as a way of setting the stage for your client to speak. Let the client talk about what happened and how it has affected her. Let the insurer ask her questions. Getting nervous? You should be, even with a stellar client. Read on.
2. Prepare your stellar client to be showcased. You may have the perfect client, but if you don’t prepare her adequately you may lose the value of her inherent integrity, presence and spirit – or, worse, reduce the value of the case in the eyes of the insurer. Thorough preparation can reduce the client’s anxiety, allowing her to be more herself. It also allows you to avoid your own anxiety produced by the uncertainty of turning your client loose.
3. Make the most of the mediator in showcasing your client. A creative and flexible mediator makes a great negotiation coach, who can help you think through the best way to highlight your client. Unless counsel for the insurer would object – and most would not – don’t hesitate to call the mediator before the mediation to discuss your preference for a longer joint session in which your client speaks. Ask the mediator for other suggestions, too.
In a recent personal injury mediation, the insurance adjuster called the home office to increase his authority from $35,000 to $70,000. After concluding the call, he commented that the plaintiff – an unassuming, quiet 60-something man with obvious integrity, presence and spirit – inspired his desire to do the right thing. Had the plaintiff’s lawyer spoken for the client and insisted on separate sessions from the beginning, I doubt the case would have settled at all.
1 To determine the principles of influence, for three years Robert Cialdini infiltrated sales training for “compliance professionals” (sales operators, fund raisers, recruiters, advertisers and others). The book is an entertaining read. R. Cialdini, Influence: The Psychology of Persuasion (New York: Quill William Morrow, 1993), xii.
2 Cialdini explains that liking is positively influenced by the following: physical attractiveness, similarity, complements, contact and cooperation, conditioning and association. (Cialdini, 171-204)
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