Negotiate Before You Mediate

Post by Jack Griffeth

In the 35 years I’ve been practicing law, mediation has dramatically changed the number of critical cases tried to a jury conclusion.  In South Carolina, mediation has become almost a center point of trial practice.  In my home town of Greenville, in the 1990s we would try over 100 civil cases a year in Greenville County alone. In 2010 we tried 40 cases; in 2011 we tried 28 cases. 

As a mediator, I routinely do at least 3 mediations each week and have been certified as a mediator for the past fourteen years.  We are beginning to see mediations required in almost every county in South Carolina by operation of Supreme Court Rule or the provision which allows mediation to take place in any county for any case where a circuit judge deems it proper to mediate before placing the case on the trial roster. 

One trend that I see, however, is that sometimes the parties are waiting until mediation to even begin to negotiate.  That is not a bad strategy, but I encourage people to negotiate as early as sufficient discovery would allow; I believe that makes for a more useful and productive mediation when the parties have at least talked before hand.  Prior to the advent of mediation, we would negotiate often in an effort to get cases settled.  My law partner, Joel Collins, advised a group of young lawyers at our annual bar convention several months ago to continue that practice and to not wait until mediation to begin the negotiation process.  I encourage all trial practitioners and insurance defense lawyers to actively seek to try to engage plaintiff’s counsel in negotiation prior to mediation.