Mediation and Focus Group Clips
In this episode, we explore how focus group clips can be used as tools in mediation. Specifically, I’m sharing five simple things that we can do as plaintiff’s lawyers to help our mediation, which I learned from a respected mediator on both sides of the aisle.
In this episode, you will hear:
- Virtual mediation v. in-person mediation
- Ways to prepare your client for the mediation
- Sending a demand before the mediation
- Negotiation styles (ex. positional bargaining and principled negotiation)
- The ranges of risk on a case
- How to use focus group clips for mediation
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Supporting Resources:
If you have questions or a particularly challenging client preparation, email Elizabeth directly for assistance: elizabeth@larricklawfirm.com.
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Episode Transcript:
Elizabeth Larrick: Hello, and welcome back to the podcast. I’m your host, Elizabeth, and I’m glad you’re joining us.
Today, we are going to spend this episode talking about mediation, specifically going to address a mediator’s point of view when it comes [00:01:00] to using focus group clips. in a mediation. We’ve talked very little about this on the podcast, and I was happy to get a mediator’s point of view. And I thought, let’s talk about it.
Let’s share it. And I love some of the things that he talked about. But before we get to that place, I want to talk a little about a few other things that this mediator talked about in his CLE presentation. He is a loved and respected mediator on both sides of the aisle. And he came and presented the five simple things that we can do as plaintiff’s lawyers to help our mediations.
And there were a couple things that he pointed out for just his point. of you that I thought were really helpful, and I just want to hit those high notes for you, because I think that they bear repeating. At times we can forget, or like I talk about, and you already know and experience, we can get really busy.
One of the things that he talked [00:02:00] about specifically was virtual mediations. And His statistics, basically going back from before the pandemic and after the pandemic, said that basically there was very little difference in resolution, whether they were in person or via zoom. So he of course told us his prediction was zoom is never going to go away for mediations.
So be prepared for that, but also to think about when it would be a good time to have in person mediations. His point of view was that if you have a great client or if you have a specific damage that is difficult to translate via zoom and The example was there was an injured person Broken their jaw and it had grown back in such a way that There was a clicking and movement of the jaw whenever she talked And he said, that’s a good thing to be in person because that’s really hard to translate over Zoom.
But that also led into one of the high [00:03:00] points, which was preparing your client and making sure, one, they are prepared for the content of the mediation, meaning that they know really what’s going to happen there, what people are going to say, and the purpose of a mediation. Also helpful to talk about money and expenses and those kinds of things.
He also made a very big point to talk about how When clients appear and it’s obvious they’re at work or they’re very distracted or even possibly driving it significantly decreases the ability of the case to get settled that day because the adjuster will see that and obviously discounts the situation significantly if your client is distracted and specifically if they’re driving as well.
Keeping that in mind when preparing your client and thinking about the content. Also, when you remove those kinds of surprises, you’re more likely to have your client. be more likely to move in a direction for settlement. Another high point that he talked about was sending a demand before the mediation and [00:04:00] specifically sending it with some time, 30 days out, so that you could actually follow up with a call to talk to opposing counsel to see if there’s anything, any holdouts.
And specifically the mediator went on to say, it’s not enough anymore to ask. Do you have everything? He said right now with many of the main carriers, insurance carriers, it’s very much about what each individual adjuster, and particularly sometimes a supervisor, would need to see, want, and have. Versus necessarily what, you know, hey, I’ve given, do you have everything?
They may have everything, they may not, but again, that’s going to be kind of a, hey, how do we read the situation? What can we do best to suit your adjuster or the supervisor in the case? The other thing that the mediator talked about, which I found really fascinating was the negotiation styles. He talked specifically about [00:05:00] positional bargaining and principled negotiation.
He talked in depth about positional bargaining is really a lot what plaintiff’s lawyers come in. We typically have, here is our number, and we’re not budging off it, right? So it’s, My Way or the Highway, opening with a demand and corresponding with a low offer, and really it’s a very low sum game because it becomes a test of will, who’s going to crack first, and it’s very much about perceiving concessions and signs of weaknesses.
Rather than the potential value creating moves that need to happen and a lot of times we come in that way and when we do That’s not at all how the counterpart on the other side is Looking at and evaluating they are very much on a principled Negotiation where basically it’s very much a risk taking It is a range of possibilities [00:06:00] and truly about limiting the risk, the least amount possible risk.
And he said, when you have a lot of times this positional bargaining take place, settlements are very unlikely to happen, especially if the ball keeps moving, Hey, we filed suit now it’s worth four times more. So that’s not really, it’s not a risk to them that you file a lawsuit. So that doesn’t change anything for them.
And he really gave a very good example, specifically laying out A range of risks on a case that they had recently had. an example where it had a defendant’s best day in court, which was zeros. And then it had a plaintiff’s best day in court, which had 1. 5 million. And what he was trying to explain was, you’re, dear Jester, you’re putting all of your weight in that this is going to be defendant’s best day.
When really. You’re overweighing that position. It’s more likely that something in the [00:07:00] middle is going to happen. So they had also done kind of the ranges in between there. What, best day, and then I think they had four or five different options. Basically weighing out different percentages of liability.
And not changing a lot of the medical bills and that kind of stuff, but changing some of the other values they had in there, and they had a couple different damage values in there that could be added in, of course, bills and futures and future medicals, and they changed all those numbers around. And when they were able to present that overall view of the range of the risks, It got the case settled because then that really opened the eye, just, oh, we actually, we have risk here because it’s not going to always be like what we think a plaintiff’s best day.
And it’s not likely to be a defendant’s best day. I mean, those are outside. It’s really going to be somewhere in the middle. So I thought he did an excellent job talking about that and really trying to get plaintiff’s attorneys, plaintiff’s lawyers to look at the other point of view [00:08:00] when we’re walking into.
Okay. A mediation and being open to that point of view, but also thinking about presenting things in that point of view to get further down the road when it comes to negotiating and settlement. He didn’t really have a position one way or the other about like how often things settle or don’t. The only other thing that he had to point out was in his observation that mediators proposals were basically becoming the norm, very much a regular, Turning into a little bit of a tool that the opposite side was using again as part of their risk analysis.
I thought it was super helpful all these good points to remember. But again, I found that last point that positional bargaining versus principal negotiation very helpful. Because I think we can get really one track minded about how things happen because that’s just the way it’s been done over time. And it can definitely just end in frustration.
I can speak [00:09:00] 100 percent from personal experience of taking that positional bargaining and that’s it. And then when I do, having zero chance of getting any settlement in the case without something else like very significantly happening. Because they then take the position, she’s not going to do it. And she’s basically so stuck in that one position.
Little food for thought. I appreciated the presentation by that mediator. But once it got to the question answer, somebody raised their hand and said, Hey, how helpful are focus group clips? And he said, they’re not that helpful because they get discounted severely. The reaction that I get is we weren’t there.
And. Basically, this is a biased set of people, these are just a room full of their friends or a room full of family members just saying things. It’s significantly discounted. And his, a little bit, I talked a little bit to him a [00:10:00] little bit more whenever I got a chance to one on one. He said, if people are going to use focus group clips, you either need to prepare the other side for that, meaning you need to say, Hey, we have this information.
Or if you want to wait, he said, you really have to provide a strong foundation and you need to be prepared in that foundation to show like where these people came from, even share some demographic information to be in order to be able to show this is not just a biased group of people presenting things that I basically wrote on a piece of paper and told them to say.
And the other thing I would add to that is you need to have a strong reason and purpose for showing a focus group clip. Typically, when we clip things out, even if we’re clipping out depositions, it’s just too long for a person’s attention span. attention span. So sometimes we make clips, they are generally 10 to 12 minutes [00:11:00] long.
It’s way too long. Sometimes we make it too short, just having one question, one answer, right? That’s not going to give them a full idea that this was an objective focus group. So you really need to think about, Hey, what am I showing this for? And a lot of times when I use focus groups for mediation clips, I’m taking the time.
defense position and running it through the focus group to get their reaction to it. I’m not trying to just get all the sweet spots for the stuff that I already know that they already know. I’m testing out their positions and then able to say hey, hear me answer the question or they show a clip of their witness and then it’s The focus group reacting to that or the focus group responding to that.
And again, that would just be to say, hey, you think this is a strong position for you, let me just tell you that’s not what jurors think and here’s why. Another thing I always encourage people to do is if you’re gonna use focus group clips, you gotta have more than one [00:12:00] focus group. You need to show two different sets of people, three different sets of people, four different sets of people, and if they’re all having the same reaction, Even better.
But again, you’ve got to be able to provide that foundation for all those to show, hey, this is not a whole group of my people and I’m not just reading them things to say from a monitor. And as always, the more objective, the better. The question that the focus group people are getting. It needs to be neutral.
It needs to be objective. There can’t be any banter, right? It has to be very open ended so that when it comes back out, it’s extremely objective and it’s easier for them, meaning the insurance company or opposing counsel, to listen to it and not discount it because they are automatically going to discount it.
And then, and if you’re going to use focus groups, you’ve got to overcome all of that, definitely. And again, I don’t think very many opposing counsel have any experience with focus groups. And they’re relying on [00:13:00] adjusters who, again, you may have adjusters who have no experience with focus groups, other than they’ve been trained to automatically discount, dismiss, and despise.
So always think about that when you’re going to go and either create clips or have that in mind. Hey, I’m going to use this focus group to try to test some things and maybe some clips will come out of it. But then also which way are you going to, are you going to go ahead and tell the opposing side, Hey, we’ve been running some focus groups and here’s what they’re saying.
If the, Automatic reaction is, we weren’t there. Maybe the automatic response should be, let me invite you to one. They never show up in any of my experience. Hey, you’re welcome to come down. We’re going to run folks through. It’s going to be biased. Blah, blah, blah. Okay, whatever. We’re going to do it whether you’re here or not.
So, just be thinking about those things when you are having that in your mind. And knowing what is the best way to use them. How am I going to establish a foundation [00:14:00] for it? And again, one other kind of red flag that raises in my mind that I always get as a concern from lawyers, which is, won’t I have to give them the entire.
Focus group if I disclose a clip. I don’t know. Let’s walk through this. Is it technically evidence in the case? No, of course not. You’re not gonna use it in the courtroom. Is it discoverable then? What claim does it have to go towards? None. It is absolutely positively for trial strategy and litigation purposes.
I’ve not had anybody challenge that. And sometimes actually in federal court, you have to a hundred percent disclose when you’re doing focus groups. Give the names, give the lists. All that is a hundred percent open and there’s no hide the ball or anything like that. And I don’t think people who do focus groups hide the ball.
I’m one of those people. I just think it’s a tool in our tool belt. It’s just to get ready for trial. That’s the purpose of it. So it’s not for anything else. It’s not like we’re out [00:15:00] videotaping the defendant like sometimes. The other side does of our clients, right? Surveillance. That’s not what it’s for.
It’s not gonna be shown to the jury. And I can’t imagine that a judge would say it is fully discoverable. So I hope that you found this episode helpful. I think there’s more nuggets that we can talk about, and there’s probably more ways that we can discuss when it comes to using focus group clips in a mediation And so I’m going to leave that open, we’ll probably have some folks maybe come in and maybe we’ll have a guest or two come in and talk about how they did it in a case, how it worked for them, and how to maybe read opposing counsel or read the decision makers to decide how to create that foundation for those clips.
All right. Thank you so much for joining us. If you enjoyed this podcast, please share it with somebody else. That would be great. Also leave a review or rate it on your favorite podcast app. If you are an Apple podcast [00:16:00] follower, then if you would just hit that plus button up in the top corner so that it automatically downloads onto your phone, that would be great as well.
All right. Until next time. Thank you.