Avoid This Mistake if You Plan to Use Focus Group Clips in Mediation [Ep 142]
Explore the potential of focus groups to elevate your mediation success with insights from Elizabeth Larrick. This episode is a must-listen for trial lawyers looking to refine their negotiation strategies. Elizabeth shares the strategic advantages of conducting focus groups two to three months before mediation to influence insurance company figures effectively. She distinguishes between focus groups for trial preparation and those tailored specifically for mediation, offering techniques to maintain confidentiality while utilizing focus group findings to drive better settlements.
Elizabeth emphasizes the critical importance of early preparation, providing ample time to share insights with the opposing side ahead of mediation. This proactive approach enhances negotiation effectiveness and informs decision-making.
In this episode, you will hear:
- Strategic use of focus groups to enhance mediation success
- Importance of conducting focus groups 2-3 months prior to mediation
- Differentiating focus groups for mediation from those for trial preparation
- Techniques for maintaining confidentiality while sharing focus group insights
- Leveraging mediators to communicate focus group findings effectively
Supporting Resources:
In case you missed it, here is Episode 139 that talks about using focus groups in discovery. Listen here.
Curious about doing a focus group for your upcoming mediation? Schedule a free call to see how Elizabeth can help.
Episode Transcripts:
Elizabeth Larrick (00:02.592)
Are you gearing up for that big mediation and ready to take those persuasive focus group clips? Or are you contemplating taking your case to a focus group before mediation? Before you do, tune into this episode to avoid
a huge mistake that you may not even know is waiting for you. Hello and welcome back to the podcast. I’m your host, Elizabeth Lerick, and we’re here to talk all things PrEP, focus groups, trial strategy, witness PrEP. And in today’s episode, I want to talk about a really common mistake that we may be making when we take focus groups clips into mediation. Now, you may be a lawyer who
is thinking about doing this and this is a great episode for you or you may have been trying this in the past and maybe can’t understand why the clips were not landing the way that you thought they were. So let’s talk a little bit about the setup here. You’ve worked this case up really hard. You’ve pushed for written discovery, taken those hard depositions, developed the damages, got the stories, got the doctors in line, and now you’ve got mediation set and you’re preparing. Maybe
you’re in a place where you make presentations or maybe you’re putting together a packet to send over the opposing side and you think, Hey, you know what? We’ve got mediation set. Let’s now do a focus group so we can take some clips in there. Yes, this is an awesome thought. It makes me super excited. However, I want to tell you there’s one big red flag that is sticking out and it’s the timing. I mean, when you’re choosing to do this focus group for the mediation because
Elizabeth Larrick (02:18.138)
The insurance industry already has their numbers, their figures set 30 to 45 days out, sometimes even longer than that before your mediation. So anything you bring to mediation, it’s not going to move the needle really at all. So I want you to avoid this pitfall and to be prepared. And let’s talk about the three things that we can be doing to make our focus group clips for mediation.
kick the can down the road, meaning increase that number that they may be bringing to the table. Where did this come from? Well, I recently attended the Arkansas trial lawyers annual meeting. Shout out was a wonderful CLE. I encourage you to do it. And I sat down to listen to a panel of two lawyers who now work on the plaintiff’s side, but for an extensive period of time and career, they worked on the defense side in the trucking industry.
So they were there to present several different myths or just plain facts that plaintiff lawyers may not even know about the other side. And one of those things was the number for mediation is set 30 to 45 days out. And to get that number to move, the information needs to be funneled into the file into the other side very early on so that the processing can go all the way up.
and come back down to the file because there are many different layers and decision makers when it comes to these larger cases. Now, again, let’s really talk about what kind of cases are we talking about? I’m not talking about our policy limit car wreck of 30,000. That’s the limit here in Texas. I don’t know where you may be listening. It may be different. However, we’re talking about our larger cases where we have significant injuries and you want to be running these focus groups and you want to be
squeezing as much as you can from that feedback. So we don’t only running focus groups in the 30 days before mediation for mediation. Now, let me just clarify that a little bit. There are focus groups that we run to learn about our cases, to find blind spots, just to do general research about themes and attitudes. That’s not what I’m talking about here. Here, focus groups for mediation are done in a very specific way so you can create clips
Elizabeth Larrick (04:37.894)
that specifically target either defenses that you know are out there that you’ve heard, or maybe to clarify a piece of damages. Either way, they’re very persuasive. They’re very different than focus groups for trial, or like I mentioned, focus groups for research. Or if you didn’t tune in, focus groups before you even start discovery. The link to that episode will be in the show notes. So.
There will be a follow-up episode to distinguish between a focus groups for mediation and focus groups for trial. But the main ones are they’re extremely persuasive for the specific purpose of talking directly to the other side and for mediation. So let’s talk about three things that we can be doing to avoid the pitfall of bringing focus group clips to mediation and them falling flat. And number one is our timing. We need to be doing these focus groups
two to three months out before our mediation date so we can decide, is this a clip that I want to send over? Now, the other part of this is, and a lot of times people have a big pause because you want your focus groups to remain confidential. So how then do you translate them over, send them over to the other side? And that would be step number two, which would be, you gotta prime the pump with the mediator. You’ve gotta get in some conversations with our mediator and figure out,
Okay, are they going to help you with this? Are they not? And the other thing is you can always be talking to opposing counsel about focus group clips. Now, to protect your confidentiality, this is step number three, we always have to make sure that we’re sending things through the mediator, right? Because here in Texas and in many states, you have the confidentiality, the settlement privilege, if you will, that anything exchanged for the purpose of settlement during mediation or even follow up after mediation.
right is confidential. want to make sure that stays that way because I know not everything we do in our focus groups needs to be disclosed in mediation. So this takes quite a bit of planning because you want to make sure that you’re getting all the information that you need in order to run the focus group and keeping in mind that date for mediation. So this will take a little bit of planning on your part, but I know that you can do it because we want to take
Elizabeth Larrick (06:58.159)
the best shot we can at mediation. And you want to make sure you’re giving the information over to the other side so they can have things adjusted. Remember, we talked about those layers. Decision makers, it’s got to go up and then it got to come back down so that when that day comes for mediation, their right number is available, right? They have to be able to do their analysis. And this may be where you’re thinking, wait a second, hey, I don’t want to
Give all my secret sauce away, Elizabeth. Again, let’s go back to what we talked about. Focus groups for mediation, very different than focus groups for trial, right? We talked about two main purposes that you would wanna bring clips to mediation. Number one is to knock out a defense that they’re hanging their hat on. Maybe it’s a fact, maybe it’s a specific kind of thing that they’re, hey, this is where we’re winning the case. And sometimes it’s just an attack on your client. And the other thing is maybe there’s something that they don’t understand.
that you can provide context or have the jury or the focus group members provide context to after it could be a piece of damages. It could be something else that’s quirky about liability. Either way, you’re the purpose is to have these clips speak directly to the other side. Okay, so we’re not giving away our secret sauce, but we are going to knock some of those things out for mediation. Purpose would be to move the money. Okay.
So we know we gotta start early, get these things ready. And again, you gotta give yourself time to even make the clips themselves or send it out for someone else to make the clips. Always delegation is good. Number two, we gotta use our mediator. We gotta prime the pump, make sure that they’re open to it and there’s a good purpose there, right? Keep the communication open. And number three, make sure you’re always protecting yourself through confidentiality, sending things through to mediator or again, label everything for the purposes of confidentiality.
All right. I hope that this episode was helpful and also putting a little seed in your mind. If you’re going to use focus groups for mediation, you got to start early, right? You got to get those things created, make them clip down and well in advance of mediation. So you can get that information over to the other side so they can make better decisions before that mediation day. All right. This is a short and sweet one. I hope you enjoyed the episode.
Elizabeth Larrick (09:20.291)
If you are curious about doing focus groups for mediation and would like to do them with me, there’ll be a link in the show notes to schedule a free consultation call. All right. Until next time. Thank you so much.