Product liability mediation is different than most other types of mediation and there are specific qualities that a product liability mediator should have to ensure an effective and smooth negotiation process. If you are considering product liability mediation for your own mediation practice, these qualities should be your goal.
1. A mediator who is accustomed to dealing with big numbers.
Experience in facilitating larger dollar cases will help enormously in product liability claims, particularly experience in identifying at what point difficulties tend to arise in such cases and how to avoid them. Your experience will give you value to both sides in that you will be able to provide leadership throughout the process based on that experience.
2. A mediator who can develop trust and rapport with both sides through pre-mediation strategies.
Developing a sense of trust with both parties can be done through a pre-mediation conference. This conference can be an opportunity for you to anticipate some of the obstacles that typically arise during product liability negotiations, and detail to both sides the way those obstacles should be handled. This knowledge and foresight will give both the plaintiff and defendant a sense of trust in your abilities and will assist with streamlining negotiations during the actual mediation session.
3. A mediator who is able to identify key decision makers.
When you identify key decision makers, you are able to steer negotiations onto a quicker, easier path. A way to do this is to hold a pre-mediation deposition of the persons most knowledgeable about the retention and insurance coverage available to cover claims and disputes. Although the defense attorney might be able to hint at these numbers, more precise discovery and assessment of liability can be accomplished through such depositions.
4. A mediator who can conduct thorough research.
Finding information that clients are not readily willing to share is a useful tool in ensuring negotiations are successful. Researching past product liability claims that have been brought against the company can provide excellent evidence of how the defendant has settled in the past, allowing you a better picture of the direction in which to steer negotiations.
5. A mediator who is up to date on product liability cases and how they have been resolved through the courts.
Knowing how the courts would likely rule on similar cases gives you authority in letting each side know where negotiations should begin. Stay up to date on recent rulings and use these rulings as examples when facilitating your clients’ negotiations.