Litigation

I am occasionally amazed at the lack of protocol observed by certain settlement professionals during a mediation.

The placement of a structured settlement today commonly involves brokers or consultants from one or more interested parties who split the fees much in the same way a brokers to a real estate sale. For the most part it works well and is fair for all parties and is disclosed. Yet for some,  "side lipped" horse trading lives on.

Here are some thoughts inspired by a few recent personal experiences:

• When you are a settlement professional invited to a mediation, you are a participant in an adversarial process. You are also representing our industry. It is absolutely not appropriate to come up to your adversary who is sitting next to his client, turn your back to his client and then, with a poorly disguised nod and a wink, suggest that the two of you "go out into the hallway" when the intent is simply to discuss how commissions are to be whacked up. If you don't think there is any perception problem there then perhaps you need to get some new bifocals!
• You should not be discussing aspects of the case with your counterpart at the mediation, or providing any signals like "thumbs up" unless authorized by your client.
• You should come prepared for the mediation and be knowledgeable of the laws of the jurisdiction.
• Do not prepare a structured settlement quote from a company that is not licensed in the state of jurisdiction if you expect to be credible.