Since the mediation regulation passed, I have had the opportunity to act as mediator in many workers’ compensation cases. The skills of the attorneys on both sides in the S.C. Workers’ Compensation bar are truly humbling to encounter. I have heard countless openings by talented, zealous advocates on behalf of their clients. It occurred to me recently that there is one simple thing to avoid in your opening at a mediation if your goal is to resolve the claim. It hails back to elementary school; avoid hostile characterizations of the party.
Often there are credibility issues at the heart of a claim. In the opening, with all of the parties at the table, use of words like “lies”, name-
calling like “liar” or direct attacks on the claimant or the employer merely makes the other attorney bristle and places him in a position of having to come to his client’s defense. While you may wish to let the claimant or the employer know that a hearing may be uncomfortable and the inconsistencies will be an issue, it is never productive to call the opposing party a liar in the opening. There are other words that can be used such as “inconsistencies” or “credibility issues.”
Likewise, if you have a piece of evidence that will make your case or gut the other side’s theory of the case that you intend to use at mediation, consider holding it until after the opening. When you have an explosive piece of evidence, you need to let opposing counsel discuss it privately with his client rather than posture on behalf of his client, in front of you, with indignant outrage.
Openings by the attorneys can set the entire tenor of the mediation. You can make your point without name-calling or revealing explosive evidence in an “aha!” moment. It may not be as personally gratifying as watching your opposing counsel and his client squirm, but it makes it much more likely you will enjoy the ultimate satisfaction of a settled case.
