Episode 20: Conversation with Barry Bitzegaio (Talk on The Mediation Process)

Barry Bitzegaio:

When you go into a mediation, be open. This is going to be one of the greatest learning experiences of your life for better or for worse, and it’s an opportunity in the final analysis that you have some control of the outcome. Nothing happens unless you say it does happen.

David Craig – Host:

I’m attorney David Craig, managing partner, and one of the founders of the law firm of Craig, Kelley, and Faultless. I’ve represented people who’ve been seriously injured or who have had a family member killed in a semi or other big truck wreck for over 30 years. Following the wreck, their lives are chaos. Often, they don’t even know enough about the process to ask the right questions. It is my goal to empower you by providing you with the information you need to protect yourself and your family. In each and every episode, I will interview top experts and professionals that are involved in truck wreck cases. This is After the Crash.

David Craig – Host:

Welcome to After the Crash. Today, we have attorney Barry Bitzegaio as our guest. Barry is an attorney. He’s been practicing for over 40 years. The largest part of that has been in arbitration and mediation, alternative dispute resolution. He has been AV rated by Martindale-Hubbell which is one of the oldest rating companies for lawyers in the country. He’s been listed as Best Lawyers by US News and World Reports, and Super Lawyers in both Kentucky and Indiana. More importantly, to me, he’s a trial lawyer.

David Craig – Host:

He actually tries cases and has tried cases and also an appellate lawyer. He’s handled cases on appeal, and he was the first mediators that I ever appeared before. You probably don’t remember, Barry, but down in Cincinnati, Ohio, I did a mediation, and Barry was the very first mediation I ever went through. So, I really appreciate you joining us on the podcast today. Today we’re going to talk about mediations.

Barry Bitzegaio:

Hey, thanks for having me. I’m really pleased to be here. It’s a little painful to hear how old I am by your description, but hey, time moves on.

David Craig – Host:

You helped me through my very first mediation. You were one of the first groups. Weren’t you one of the first mediators in the state?

Barry Bitzegaio:

Yes. Mediation became really popular. It was basically introduced around the early 1990s in response to the crash and congestion in courts as a consequence of the drug dealing trafficking problems in the United States. So, people went to mediation to try to find a way to move cases off the court docket. What they found was, not only were cases settling at a high rate, but they were settling more satisfactorily to people because they were actually involved in the process of coming to a resolution. They had input. They had a say. Trials are sort of, for the people that are participants, the injured parties and their families, they’re watching what’s going on. They’re not participants so much as observers of the lawyers performing, judge ruling, and juries deciding their fates. Mediations more satisfactory to them because they’re there in the room, or they’re there in the building, or they’re there in the process, and they’re getting complete information, and they can make their own decisions.

David Craig – Host:

Well, the podcast is designed for ordinary average people that may be involved in a personal injury case, a serious case or wrongful death type case. A lot of folks don’t even know what mediation is. So, let’s start off with you just kind of explaining what is a mediation.

What Is Mediation?

Barry Bitzegaio:

I suppose first you have to know a little bit about what the trial and legal process is. Generally, the lawsuit gets filed, or this injury or often a horrific occurrence has happened. As they move through the process, people are gathering information. The mediation is something that’s set in order for everybody, once they have adequate amounts of information, to sit down and let’s really try to work on trying to get something resolved. The mediator, me in this instance, and I’ll refer to me throughout this, though often what I say I do in mediations is not done by others, but we typically set a meeting date. Everybody gathers together. Your clients, the injured party, is there. Often multiple parties with various interests in the lawsuits are also there. We sit down in a confidential setting, and we talk about the case.

Barry Bitzegaio:

My role as a mediator is to sort of to guide the negotiation, but as you well know, I’m everything a judge isn’t. I have no power whatsoever. I simply try to assure that everybody is on task, and at times, I play a pretty vigorous devil’s advocate. So, we try to explore alternatives that might get us to a point of resolution. It’s a wonderful job. I like it a lot, and I enjoy watching people really have the opportunity to give input and listen to their attorneys, which is important, and gather the facts. They come out, I think, with an appreciation. Whether or not they get a settlement, they understand what the process is about, and they feel more comfortable with it going forward. They certainly have greater information about all aspects of their case.

David Craig – Host:

I know you’ve done mediations in Kentucky, Ohio, and Indiana. I don’t know, anywhere else?

Barry Bitzegaio:

West Virginia, Missouri, Illinois, Tennessee. I think that’s it.

David Craig – Host:

So, are mediations pretty much the same no matter where you go?

Are Mediations the Same in Every State?

Barry Bitzegaio:

Well, mediations aren’t the same if I stay in Indiana. Every case is just a little bit different. Different mediators approach it in a different fashion. I prefer a process where everyone sits down, and we have almost a mini trial. You’re hearing from both sides about the case, and if you listen, everybody will learn something. The communication is very direct without filters or screens. A lot of lawyers, in fact, don’t like the general session because it’s a little bit uncomfortable for everyone, but my advice to them is that you’re either going to listen to the other side politely in a nice conference room or you’ll hear it in a courtroom later. They’re going to be talking about the same thing, and you aren’t going to be able to stand up and say, “I don’t agree with that,” or at least shout it across the courtroom.

Barry Bitzegaio:

We’re going to be talking about the same things in the courtroom as we’re talking about in the mediation process. The difference is the mediation process is a confidential one, and you have some freedom to express yourself even to the mediator. I’ve certainly been characterized as things that judges have never been characterized as such. So, I think it’s valuable for the participants to get a chance to hear, and you do learn things if you’ll go to the general session. After that, we break out often, and we talk. I move from room to room and try to explore what people’s interests are, what’s available, and what’s out there.

Barry Bitzegaio:

Ideally, we find common ground without much involvement of the mediator, but sometimes the mediator can come in with suggestions that help move the matter forward, but it’s really the parties that do the hard work. It’s an opportunity, again, to control the outcome. At some point, no matter what the jurisdiction is, if we don’t get something done by way of settlement, somebody’s wrong. Then, we’ll go into a courtroom, and we’ll have a group of six or eight or twelve who will vote by unanimous vote or by plurality, six to two, nine to three in some jurisdictions. They’ll decide it for you. They have to or else they have to stay there.

Barry Bitzegaio:

So, you’ll get this problem that has been vexing people for months, maybe years, often years. Then you’ll be turning it over to a juror who haven’t seen it at all except maybe for days, and they have to vote unanimously often about what the outcome is or they got to stay there, and they’ll find an answer. They don’t like to stay in the courtroom forever. So, you lose control. So, the negotiation process keeps you in control, and that’s the great benefit of it, I think. That’s where everybody gets some satisfaction. We haven’t asked somebody else to tell you what the answer is. You had input, and nothing happens unless you say you’re going to go with it.

David Craig – Host:

So, at the mediation, the injured party or the representative of the estate, shows up with their own lawyer. Then the other side has a lawyer there as well. One question I get asked all the time is whether the person who caused the harm going to be in the room there as well? So, the plaintiff, which is the injured party who I represent all the time, they’re there. They are required to be there, and they’re the decision maker. I give my advice, but they make the decision whether to settle or to go to trial. On the other side, you usually have an insurance representative or a trucking company adjuster and a defense lawyer, but is the person who actually was driving the vehicle or driving the semi, are they there?

Barry Bitzegaio:

Well, I would say not typically. You allow your clients to make the decision, and I think is a very accurate description of how you handle them, and the way I think the best lawyers do. They give full advice and then allow their client, who is the person who has to live with the outcome, be the person that makes the decision. The drivers in a trucking case typically don’t have a decision making opportunity. They have appeared in mediations in the past, but most often just to express their remorse. They’re also humans.

Barry Bitzegaio:

Their remorse doesn’t alter the outcome in the courtroom, and as you are well aware with our current environment, we also often have drivers who are not culturally comfortable, who might have even some language barriers to understanding, and you usually, as the attorney, already had an opportunity to question them quite thoroughly. So, you know what their responses are. If the injured party or their family recognizes that this process, it’s simply not about punishment, I think it can be about cathartic thing, a cleansing thing if the driver comes in and apologizes.

Barry Bitzegaio:

Often they do, not always eloquently, but they do. I had a driver once bawling and was talking about how he hasn’t slept for a year and that he has violent issues of sickness. He didn’t express himself very well, but it was genuine. Anyway, for your purposes, usually that’s performative. I mean, I don’t mind that they come in and they do it, but if a human being has a genuine issue, a genuine desire to apologize, they should be allowed to do it.

David Craig – Host:

Sure. I think my clients are oftentimes, I have them both. I mean, I have some clients who look at it and say, “I have to be here. Why shouldn’t they?” Then, I have other clients who don’t want them to be there because they just don’t want to see them because it’s emotional, and it brings back such strong memories. I’m like you, I mean, I’ve been in mediations where the truck drivers come in and give a genuine apology with tears in their eyes, and it has made an impact on my clients in a positive way. It brings some little bit of closure to that because they don’t understand why they haven’t reached out and said I’m sorry. I explained to them that the process doesn’t really allow that, but this mediation does.

Barry Bitzegaio:

Well, the thing I try to get people to understand in mediation that is critical, it is absolutely critical, is focus on themselves. I mean, they need to look out for what their family needs, what they need, the results that they need to have, or want to have, but certainly the results they need to have. That often doesn’t have anything to do with what’s going on, on the other side of the table. So, this is not a method for punishment. It’s not a method for chest banging. If we just focus on what they need and get the best result they possibly can for themselves or their family, that should be their vision, their focus.

Barry Bitzegaio:

If that’s the case, what the offending driver might have to say doesn’t really change that, and the fact that the driver might be morose over what happened doesn’t fix your life, doesn’t get you compensated, doesn’t put your limbs back on, doesn’t restore a life that might be lost. We see tragic cases in trucking accidents. Trucks are big, heavy, fast things, and they cause sometimes considerable damage when things go awry, and it’s a very difficult thing. No one can understand, for example, the deep loss of, say, losing a child in a trucking accident. And what do you do? How do you value that? That’s a really difficult thing. So anyway, it’s a difficult thing to decide whether or not you want to bring a driver in who really doesn’t have much of anything to do with the decisions that are made, and often has been terminated because of something they’ve done during the course of the accident and is not even available to be drug in.

David Craig – Host:

Well, and I’ll tell you, I mean, whether he should or shouldn’t, it plays a big role in my room when the other side says stuff. I mean, I remember I had a wrongful death case where a lady’s husband was killed right in front of her eyes. Two of her kids were hurt. She was in the vehicle behind him, and I know the defense lawyer, and the defense lawyer had worked with the adjuster from the insurance company, and said, “Don’t say anything other than I’m sorry,” but she couldn’t help herself. She came in and started lecturing my client about the fact that this was a truck, but it could have easily been a soccer mom in a van or whatever that killed her husband, and that it was just about money.

David Craig – Host:

So, my client physically got ill, and started throwing up in a trashcan, and then it took hours to get back on pace. So, I mean, and it’s easy as a lawyer, as an advocate, but at the same time, these are human feelings, human people going through tough times. So, it does make a difference on what is said, who says it, and how it’s said. On the other hand, I’ve had times where defendants have come in, or the attorney or the insurance company has genuinely apologized, and said, “We’re really sorry for your loss,” and I’ve had that work to help smooth things over and make things better.

Barry Bitzegaio:

Hey, certainly. One wonderful approach is to say, “Really everybody knows what’s happened here. We only came in to say we are so sorry. We’re human beings too, and we know what your loss is, and we can’t understand it because we didn’t experience it, at least completely, but we recognize that it’s there and we grieve for you.”  That I think is a great human approach to things. The bottom line is we actually are human beings all the way through. Some of the claims people forget that perhaps. It sounds like this lady in your particular case really did. But that’s when the mediator gets to go back and say, “Look, I’m sorry about that. Hopefully you don’t have somebody like that on your jury, but that’s the nature of the beast.”

David Craig – Host:

Well, let’s talk about the skillset. I mean, I’ve mediated in multiple states, and I can tell you, there’s a difference in mediators and a difference in styles. In your opinion, what skillset is necessary to be a successful mediator?

What Skill Sets Are Necessary to Be a Successful Mediator?

Barry Bitzegaio:

Well, the rather ungentle way of saying, a lead backside, probably. The ability just to sit and stay and try to keep people on task because people are going to want to quit. It’s hard, and it’s hard working even for professionals, and it gets tiresome, but it’s important. So, the main thing is just, okay, keep plugging, keep walking. It’s like life. A mediation is just like a journey. I mean, you’re either going to spend a day, a terrible day with me, or you’re still going to spend a terrible two weeks in a courtroom. So, this is still the opportunity you have to control an outcome. I mean, at least it doesn’t happen unless you say yes. Nothing happens unless you say yes. So, there’s nothing to lose by staying and working.

Barry Bitzegaio:

I think for me that’s the main thing. Just being willing, say, “Hey, don’t give up, don’t give up. Let’s keep going. Let’s see what we can do.” There’s always going to be some opportunity until there isn’t. I mean, when a jury walks back and tells us, then we know there is no longer an opportunity, or at least there isn’t at that juncture. Again, the reality of it is if we don’t get a resolution, we will go into a courtroom. We will give this to a group of people we’ve never met before. They will vote on something they have never had to consider before, like what is the value of a human being? They must agree pretty much unanimously on what that is, and that’s a tough job. It’s a tough job for them.

David Craig – Host:

From my perspective, mediation is a great opportunity for both sides to learn about a case, but I think the mediators, I mean, and I’m maybe biased because I’m a trial lawyer, but I think that a mediator that has actually tried cases is better than someone who hasn’t tried cases. I’m biased, I think because, I mean, if you’ve tried enough cases, you realize that we don’t know everything that’s going to happen at trial, even though we think we do.

Barry Bitzegaio:

If you’ve tried enough cases, you know you don’t know anything really. I mean, about what the jury is going to do, or perhaps more precisely, you know how little you know, and that your ability to make predictions about human behavior are not very strong. We can talk in generalities. Also, there’s been a bit of an evolution, and there’s an ebb and flow to how people view things, and I think being in front of a jury, which I try to do with some frequency, it’s harder during the pandemic years, but to get in front of a jury once or twice a year so I can see how people are thinking, how things are progressing.

Barry Bitzegaio:

To understand that we hold a lot of information away from the jurors. A lot of things are known to us or felt by us that we don’t get to convey to the jury. We have legal rules that cut that off. We have rules of evidence that cut that off. We don’t disclose for supposed policy reasons, and you have to be able to understand that jurors are only going to get a snapshot, a very partial snapshot of the whole circumstance when they make this decision. I think when you’re a trial lawyer, you know how little the jurors get, and you get to understand what motivates jurors.

Barry Bitzegaio:

I’m sure you’ve had this happen, as I have had. We don’t tell jurors anything about insurance, but we allow them to ask some questions in most jurisdictions. The question you’ll get most often is, is there insurance? If so, how much? The answer we give them is don’t ask that question. Not exactly, but in essence, it is, and sometimes jurors get angry about it. The answer we give them is re-read the instructions and continue your deliberations. We don’t tell them those things, and we don’t really tell them why. They feel like we’re hiding something from them.

Barry Bitzegaio:

Lots of trial lawyers always begin by saying, “Hey, there’s going to be things you’re going to wonder about, and we’re not going to tell you, and we can’t tell you. It’s not because we don’t want you to know. It’s because we can’t tell you. So just listen, decide the facts, and the issues that the judge tells you that you are supposed to decide. That will help us, and that will allow us to make this case be resolved in a just fashion, but we’re not going to tell you everything.”

David Craig – Host:

I think that’s why when I’m trying to pick a mediator, I try to pick somebody who actually has tried cases, who understands that. Knowledge of the law to me is important. Somebody who keeps up on the law, not all mediators do. Sometimes there’s some mediators out there that just decide, well, this is my retirement plan, and they quit reading cases. I’m convinced they quit reading cases and keeping up on what’s going on. That can be detrimental. I mean there are things that come up in complicated or bigger cases that you need a mediator that understands it or who is keeping up on it.

David Craig – Host:

I, at least from my standpoint as a trial lawyer, someone keeps up on the law, somebody who can relate well with the insurance company and the defense lawyer, and somebody who can relate well with my clients and my office are all things that are important to me. Judges, they certainly see a lot of trials, but they’re not my favorite mediators because they’re not used to persuading people. They’re used to ordering people. So sometimes they know the law, they’ve seen trials, but they’re not used to persuading. There are exceptions to everything. There are some good judges that are good mediators, and I’ve seen a lot that unfortunately just want to boss us around. That doesn’t work.

Barry Bitzegaio:

I mean, obviously it’s a different skillset. I mean, judges don’t have to persuade us that they’re right. They just tell us that they are. Trial lawyers have to learn the art of persuasion. The art of education really. Persuasion, I think is a little bit misleading. I mean, we’re really just we’re educating and hoping that they understand the issues, and maybe persuasion is not wrong, but we definitely, lawyers, I mean I’ve often said, unfairly perhaps, but who knows less about the value of a case unless it’s a judge or perhaps that might be maybe a retired judge, which has gotten me unpopular with some retired judges who are doing mediations, very well often.

Barry Bitzegaio:

I think mediators that have a varied experience, a varied life experience, it’s helpful. I mean, John Jones the 22nd, whose father and father and father and father and father and father before him, because there’s no females in the line, is there because he’s a judge probably doesn’t have the same kind of life experiences as somebody who’s worked a construction job through the winter, had to pay bills, came home, and met the fuel oil man on the porch so he could pay to have his furnace relit. So, there are different life experiences.

Barry Bitzegaio:

I think that your firm, from my experience, does a good job of looking at their clients saying, “Hey, here’s a personality that will work best with this particular mediator,” or in the case that this particular mediator knows this type of action, who’s got familiarity, or often you select the mediator because the other side likes him. Because you know what you’re going to do, you know what your goals are, and you want the other side to have someone they’re willing to listen to in the middle who’s trying to help negotiate a resolution. If your opponent doesn’t trust the mediator, then it’s not going to do you any good to have a mediation because the mediator’s not going to help you. That’s what you’re looking for.

Barry Bitzegaio:

Again, the mediator is not your friend, but he’s not your enemy either. Both sides have to feel that way. If they feel like I’m an enemy to them, or that I’m taking one side or the other, and then my effectiveness is really harmed. So, I like mediation. I think it’s done a great thing for the legal system. I really enjoy the fact it helps people be involved in the process and have some modicum of control over the outcome. I want that to continue to happen. I know that if I’m untruthful or disclose a confidence to one side or the other, that word will get around and I won’t see another case, and I enjoy doing this. I like trial lawyers. I like being in the courtroom, but my job helping people get a resolution is the best in the legal business by a lot.

David Craig – Host:

Well, I think, and you touched on the fact that I mean, it’s a small world, the personal injury world really, and especially in the big trucking cases, even smaller. The number of defense lawyers I go up against, I can usually tell you who they’re going to be by the trucking company or whatever, and the number of mediators that we utilize are still a limited number. So, we have relationships with the mediators, and we have relationships with the defense lawyers. Sometimes clients don’t understand that, but I think that I don’t consider it a good or a bad fact that a mediator has a relationship with a defense lawyer. That to me, like you said, it can be helpful if everybody has mutual respect for the mediator and they like the mediator, then I think that’s the best thing. A client shouldn’t be worried about that. A client shouldn’t be worried if the mediator is friendly towards the other, or the other lawyers are friendly to the mediator. In fact, they should be happy.

Barry Bitzegaio:

Yes. I mean, if one side or the other is scowling at me and spitting toward me, then I’m probably not doing a very good job of persuading them. So, yes, I think you want to have, a lot of lawyers, and I think it’s a smart approach, will go to the other side and say, “Pick one.” I mean, you know what you’re going to do. You’ve laid out your plan of action. Obviously, you’ve got flexibility with it if it doesn’t occur, but you know where you want to go in general. If the mediator’s saying something to you that is factually based and helps you understand the problem better, then you’ll change your perception of what reality is.

Barry Bitzegaio:

The same holds true for the other side. They have to be willing to listen, or the mediator is just completely ineffectual. If somebody thinks, if you, David, think, for example, that I’m going to go in and I’m simply parroting a line coming back to you, then you got telephones for that. I’m trying to find a resolution that may not be comfortable for anybody, and if you have any illusions, Mr. Craig, I will not give you a break.

David Craig – Host:

Well, and I think that’s the thing that’s interesting about it is that I actually consider you a friend and the defense lawyers know that. I don’t try to hide that. I mean, I respect you, but the reality is you and I hardly ever agree because you’re wrong about everything.

Barry Bitzegaio:

Yeah, sure. There is that. I mean, it’s almost spousal. I mean, it’s not really, our relationship.

David Craig – Host:

So, I think people think that, for some reason, because we can be friends, that somehow and in fact, I think because I pick friends that I respect, it actually is better. Because when I hear things from you, even though I may disagree with them, I respect that. I look at things sometimes differently than I would somebody who I don’t respect or who I don’t like. So, I quite frankly think you’re more effective with me and my clients than somebody that’s not a friend or somebody I didn’t respect.

Barry Bitzegaio:

Well, the obvious thing is that you have a different agenda than I do, and I try to disclose that to your clients and to the other side. I mean, my agenda is to try to find an effective way to close the case. Whether or not that’s the perfect resolution for your client or for the defendant, that’s really not for me. That’s for you. I try to be objective and fair with people. I have to wonder, no, I don’t wonder, I know that when it gets close, that my agenda is to close the case. So, when I’m picking between two equal objectives or equal circumstances, I will gravitate toward the one that leads most easily to the resolution of the case.

Barry Bitzegaio:

That may not be the direction you want, and you and I have had conflicts over that before. They’re healthy conflicts. I’ve only been mad at you 30 or 40 times, and so that’s probably the same proportion. It’s not anger personally. It’s just, “Hey, why don’t you do this because I want this to happen in furtherance of my agenda, and that’s a healthy competition. I hope I have it with the defendants also, but you noted that you see what I see, which is the same law firms being involved with certain classes of cases, and they’re experts. I mean, they know what they’re doing, and what I can do with you, or what I can do with the defense side of that is to try to help make certain that they’ve looked at everything.

Barry Bitzegaio:

Particularly, some of the more human things. I have an opportunity to speak with the parties outside. I mean, I have a conversation with the plaintiff. I have a conversation maybe with the driver. I have a conversation with the risk manager of the trucking company. I have a conversation with the insurance carrier. These are beyond depositions where you answer a question put to you. I learned things about what their interests are really on both sides. This is a small trucking company that needs to get past this. I mean, are there other issues about whether or not they were given appropriate advice on the amount of coverage they might need to protect their small fleet? Have they explored all avenues of insurance? I mean, there are a lot of different things that we talk about in the other room, as well as in your room. Those are wide explorations that are beyond what you can get in what we call the formal discovery of a lawsuit.

David Craig – Host:

And I think that it’s important for people to know that if you’re a client that the mediators are chosen typically by both sides. So, both sides have to agree. So, the mediator’s not somebody who’s a hired gun by one side or the other. Both sides have to agree to them. And then they have certain rules they have to abide by. The biggest one is confidentiality. That if they want to continue to practice, they have to follow these rules. And believe me, mediators, and attorneys, we’re better at doing this than we are at working some other job. And this is a lot easier job than working construction or driving a truck or doing one of these labor jobs. And so, we don’t jeopardize our license. And confidentiality is the big thing. If somebody tells you something in confidence in our room, you can’t go tell the other side. And same way, if they tell you something, you can’t come tell us, nor are you going to, nor is a lawyer going to pick somebody that they can’t trust. So, it has to be mutual.

Barry Bitzegaio:

Absolutely. And I mean, I’ve been a lawyer for over 40 years, and a mediator for over 30. And I do this a lot, almost every day. And I know that if I, particularly in the area of confidentiality, if I get a confidence, a secret from somebody, and I don’t protect it, if I somehow cause it to be revealed or disclosed, that’ll get around. I’ll never see another case. And I shouldn’t. I shouldn’t. If I can’t be careful about that, that’s the one critical thing about our process.

Barry Bitzegaio:

I mean, the great thing about being a mediator is that I have no power. I mean, I’m not going to make this case come out. I can’t make anybody do anything, even if it’s the most obviously certain thing that they should do, I can’t make them do it. What I can do is just try to talk to people and try to persuade them. Again, make certain that when we’re done with the mediation, that if it goes forward to trial, it goes forward to trial fairly. Both sides learn stuff in a mediation. I’m not going to deny that that doesn’t happen. It does happen. It’s a very informative process, but secrets need to stay there. Then, trial tactics and approaches and secret needs and wants, those things have to stay within the room where they’re given.

David Craig – Host:

One last thing, and we’ll move on past what a mediator is, but that reason, I don’t typically pick defense lawyers that are actively defending these type of cases even though some of them are mediators, and the only reason is, not because I don’t trust them because I do, we have good lawyers who follow rules, but the problem is that trial strategy is something that we do. If you’re a mediator, you’re going to learn the style, the trial strategies of an attorney. So, I just prefer that the defense lawyers that I’m going up against not sit in a room with me and get to learn my strategies unless they’re trying a case against me. So maybe I’m wrong, but I think that I feel more comfortable with somebody that I don’t try cases against as a mediator.

Barry Bitzegaio:

Yeah. Well, I would say there is a difference between negotiation strategies and trial strategies, and I think what you don’t want to disclose is your negotiation strategies. David, I work very hard to disclose all of your trial strategies. That is here’s how he tries cases and here’s what he will do to you. I use that liberally. I don’t disclose here is where he is going or here is where I’ve seen him go in the past, so this is where he is going. I hear a lot of people talk about that one. I don’t think they really know. Other than I will say with you, David, as an aside, you’re always going to start too high, and that I tell them and just have some patience, and we’ll begin to really go to work here at some point. I mean, a lot of people will quit after the first demand.

Barry Bitzegaio:

There is a difference between trial strategies and negotiation strategies, and I think Craig, Kelley, and Faultless really has a pretty good reputation for being annoying and being thorough, and you’re annoying with the volume and breadth of the paper discovery that you give them, but that’s a requisite approach to trying these cases. Information is what we make decisions based upon. Information is what we have to go forward with, and that’s one of the great things about the mediation is that information gets shared certainly with your clients, and they understand why you’ve made decisions and what you’ve done and what you might settle for, and that sort of thing. That’s a negotiation strategy that doesn’t get disclosed, that you’re going to fight, and here are the ways he will fight it, or that he’s going to take video depositions until you can’t stand to watch TV anymore. Those are the kind of things I would talk to them about.  I think that’s fair. It’s different.

David Craig – Host:

So, let’s say that a client has a wrongful death case or a catastrophic injury case. I want to talk a little bit more on a practical side. What should a client, what should a person expect as far as preparation? Is preparation helpful, or should they just walk into a mediation? Or do you find it better when they’ve been prepared by their attorneys? What should they expect?

Is Preparation Necessary Before Mediation?

Barry Bitzegaio:

I would hope that you would have been preparing your client in a lot of different ways. One is, when you have a catastrophic injury or death, the ripple effect of all the damage that flows from that is pretty remarkable, and so, often somebody’s going to sit with your client. You’ve got great paralegals, paralegals, or attorneys, and get a real understanding of, okay, here’s how this has changed somebody’s life, and gathering that information puts you in a better position to sort of do some of the things you can do in a mediation that you can’t do in a courtroom, which is design a resolution that has components. I mean, jurors come back, and they say here’s the number. In a mediation, you can say, “Well, we’re going to do this with this, and this with this, and this with this, and this with this,” and begin to come up with a comprehensive goal for what you want. So, that’s one part of the preparation of the client.

Barry Bitzegaio:

The other is what do you do when you’re there? I mean, if you have a wonderful witness as a client, then you may have them express themselves. If you have a wonderful person but is a nervous wreck or is insecure or uncomfortable, then maybe they don’t participate. There are different ways to do that. Certainly, if they are going to participate vocally, if they’re going to talk, then I think the lawyers should give them some guidance.

Barry Bitzegaio:

Though, just as an aside, the most effective performance I will say by any person in a mediation that I’ve ever had was a lady who was sexually attacked while working at a late-night convenient type store, and she on her own began to talk about the experience and everything that had happened to her as a consequence of this. The claims representative, coincidentally, was another woman who began to cry during the time she’s talking to her about it. With that, she understood just the incredible, emotional impact that person’s testimony was going to have on a group of citizens who were going to decide her case, and it moved that case in a very different direction quickly.

David Craig – Host:

So, most of the time, the clients aren’t going to have to talk a lot, but you’re saying occasionally it’s helpful, obviously in the very beginning. I don’t think people, even the clients necessarily, even understand what the process is. They’re in the room with the other side for just a brief time, and then the rest of the time they’re separated. So, what we call a general session is the opportunity where sometimes the clients get to talk. Attorneys should prepare them about what’s going to be said to them. I think sometimes it’s hard to hear for the first time, but if you prepare them for that and prepare them how not to react is beneficial as well.

Barry Bitzegaio:

Yeah. Gambler’s face, I suppose. The thing about litigation as we go forward, before we get to the mediation, it’s really two lawyers communicating, and you’re trying to be open and direct and get as much information as you can across the table to them, but there’s always a filter or a screen. We can’t avoid doing it. As attorneys, I mean, we can’t convey information without adding something to it from our life experiences. If we get into a mediation room, that is an opportunity to talk to the decision maker directly. No filter, no screen. It can be painful. So that’s where your client has to be prepped to handle that.

Barry Bitzegaio:

The reality is jurors, and that’s one of the things that trying cases tells you, they make very superficial judgements about people, and how you come across sometimes is critically important. I mean, there’s a difference in front of a jury between Mother Teresa and Terry, the go-go dancer. There just is. That is a component that I think trial lawyers understand and is underused in the mediation. Sometimes if you’ve got a very good client, a client who’s going to be a very empathetic, sympathetic individual, let them talk a little bit. Let them interact just a little bit. It’s risky, but that’s one area that the claims person is a human being, and they can say, “Hey, wait, if I get that person in front of me, I’m going to feel a little differently about that person because who he or she might be.”

David Craig – Host:

I know one of the things that goes along that same line that we do on bigger cases, wrongful death, catastrophic injury type cases, is we’ll prepare a video of people to provide to the other side. The reality is that, like what you’re saying, is the lawyers, we interpret things. We see things. We’re in the depositions. Our clients are not in the deposition. The adjusters typically are not in the depositions. So, the lawyer summarizes the depositions for their claims people typically.

David Craig – Host:

So, what I find is sometimes they leave out what they look like or what they sound like, or how persuasive, and I know some defense lawyers in the trucking companies, they play videos as well of clips from the depositions so my clients can see them, but then we also do it. We’ll put a video together. If someone has articulate friends, coworkers, and neighbors that can explain what the loss has been and how it impacts us, and these are the same people I expect to get on the stand and testify at trial. I would much rather have the insurance folks and the trucking people see that at mediation than wait and be surprised at trial.

David Craig – Host:

It used to be that I would have before and after witnesses and I would talk to them, we would meet with them, and then I’d go to trial and the defense would never even talk to them. They would see them testify for the very first time when we got on the stand. Now, as we’ve become successful at trial, I can honestly say that every one of my before and after witnesses now, they get deposed. They’re deposing all my witnesses before trial, but it used to be for years I practiced, and the first time they ever saw them was when they walked into the courtroom. So now, what we like to do is provide videos because it can make an impact. Because in mediation, we don’t have all those people there.

Barry Bitzegaio:

Well, I think having and I’ve seen some of your videos which I thought were very, very effective, where you do have people who have observed what life changes have occurred as a consequence of this event, and those people are really hard to cross examine. Because I mean, you can suggest, you never actually call, but you can suggest that some people are fudging or prevaricating, or maybe even lying once or twice or maybe even three opportunities of witnesses, you can go it that way. After four or five, it becomes really hard to call all these friends and neighbors, fellow citizens, and liars.

Barry Bitzegaio:

So that I think is a very effective thing to do in a mediation. From my side of it, it gives me something to talk about in the other room. How are you going to meet that proof?  So, I appreciate it when it happens. I mean, obviously, it has to be well constructed. It has to be well edited. It can’t be boring. It can’t be overly lengthy. It can’t be redundant beyond a certain point. But yeah, it’s very, very helpful if people do that. I’ve seen some extraordinarily effective day in the life, or just fellow citizen, acquaintance, family, friends, coworkers, who can speak to what they have observed about the person, and you can’t call those people, all of them, liars.

David Craig – Host:

I think it’s one of the things that helps value a case. You may not be able to cross examine these folks at trial, but how in the world would you ever know the value of a case if you don’t see the people, you don’t see the witnesses? Because a trial is not only about what happened, the negligence part of it, but it’s on the damage part of it. How does it impact? Unfortunately, if I have somebody who’s got the same injuries, I have two people that have the same injuries, and one person has no friends, no family, nobody out there that they know that actually sees them that can verify what they’re going through and I have another person who has exact same injuries, but has a whole bunch of really down to earth, great people who are very credible, very believable. I mean, they should have the same value, right, but they don’t. In a courtroom, one has more value than the other. So, if you have those witnesses, my feeling is why not show it?

Barry Bitzegaio:

I agree. I mean, I think the thing about, if you want to get a settlement, you try to put as many cards as you can on the table. There’s always that little judgment about do I hold something back to pop on them at trial, but you’re always going to turn it over to this group of jurors who are probably wonderful citizens, but they haven’t lived it. They haven’t experienced it, and we’re asking somebody to put dollars toward human suffering.

Barry Bitzegaio:

There is no equivalency. I mean, it doesn’t mesh. I mean, how much is a lost limb? How much is the death of a six-year-old child? I mean, there aren’t dollar values that really work for that. The person who’s in the mediation has to come to that, has to have some comfort with that. So, I think the more facts that are out there, then the more likely it becomes that you resolve the case in mediation, and a resolution in mediation means that your client agreed to that. I think that is huge. They didn’t walk out with somebody telling them what they had to take. They get a chance to agree to it.

David Craig – Host:

I think that if mediation is done right, and from my perspective, is that you empower your clients to make the right decision. The way you empower them is by giving them information, not only from you, but from the mediator. That is when the process works the best when people feel empowered because it is their choice. It’s their case. The lawyer goes on to the next case, and win or lose, they go to the next one at trial. The clients have one case.  I love to see, if the other side forces you go to trial, I mean, some of the best results I’ve ever gotten were ones where the defense didn’t give us an option. They forced the hand. If they’d gotten close, most clients would prefer settlement versus trial.

Barry Bitzegaio:

Isn’t that comfortable when they’ve made you go to trial? Because there’s no downside to it. So yeah. In my own experience, some of the multiples of the last demand have happened in cases where it should have never gone to trial. So, the jury comes back and awards 10 times what was requested pre-trial because they had the opportunity to do it, and they shouldn’t have, or maybe they should. I mean, it’s nice for jurors to come in, but the reality of it is that, and we’ve talked about this previously, if we took almost any case and we tried it 10 times before 10 different juries, we would get 10 different results on the same facts because people see it differently. That’s just our system of resolving disputes. It’s imperfect. It’s the best in the world, but it’s not perfect. Perfection comes when you have a system like the worker’s compensation system, where you’ve got a chart, and the reality of that is everybody just gets underpaid. At least in a jury trial, you have the opportunity to get a reasonable compensation for the injury.

David Craig – Host:

A couple more practical things for people who are watching this who are not attorneys and haven’t been through this process, is it okay for them to bring a loved one or somebody with them to a mediation? What is your feeling about them bringing somebody with them?

Is It Okay to Bring Someone with You to a Mediation?

Barry Bitzegaio:

I think there’s a split among the mediators about whether that is a good idea or not. My preference is the more the merrier. I don’t want somebody to go home and have to explain how they came to a resolution. I want that person who is the support person, the good friend, whatever, spouse, I want them to express themselves because I can’t deal with hidden concerns. I mean, if they have a concern that’s legitimate, we will talk about it, and if they have a concern that’s not legitimate, then we’ll try to make it clear or evident to them that that is not really something we have to assuage.

Barry Bitzegaio:

I mean, I’ve had, particularly more often with defendants, kind of be upset to have somebody else in the room. And for me, no. I want them there. I mean, if there’s someone that you rely upon to help you make decisions, or who’s going to be implicated or affected by this decision, sure, have them there. And then we’ll incorporate them in into process. And they’ll, I hope, be of assistance in resolving it. And I mean, obviously you’re going to get some people who are going to be just barriers. But I’d rather directly address that barrier than have that barrier be erected after the person leaves the process and goes home.

David Craig – Host:

Another practical thing, just dress. I mean, this is kind of a business. It’s a big deal, but you’ve seen people in my own mediations show up in all black and look like Johnny Cash or Elvis. How important is it as far as the appearance? When somebody’s looking at this, they’re watching this video, they’re trying to decide what should I do, what would you tell them?

Is Your Appearance or How You Dress Important in a Mediation?

Barry Bitzegaio:

I would tell them to dress like you are going to church, dress like business casual, dress like this process means something to you important enough that you’re willing to groom for it. Remember that the claims person probably has never laid eyes upon you unless there’s been a video deposition. You are going to be making an impression upon that claims person that’s very similar to the impression you’re going to make upon a jury. When you go into a courtroom, if you have to, the whole time you’re sitting there, believe it or not, that jury is checking you out. The mediation is one in which if you come in without appearing that you care, then nobody else will. It’s your case. You really need to think about it. You really need to care about it. You really need to want to know about it.

Barry Bitzegaio:

One of the many great things about mediation is you can ask questions and you can question people. You can be very direct with the mediator. Again, you can’t say things to a judge that you can readily say to a mediator. If it’s too outrageous, I’ll probably laugh, but we’ll talk about it and we will keep moving. I can’t hold you in contempt and I won’t even try. I would hate to go through the various things I’ve been called by both attorneys and participants during the course of the mediation. Hopefully, it’s always been in the spirit of the compromise, but it’s a great opportunity to get there and talk.

Barry Bitzegaio:

Be dressed appropriately. It’s an important thing, and we’ve got professional people that expect that from you. I mean everything is theater. Certainly, the trial is. Mediation is also. You’re going to try to show the best side of you, and that’s why lawyers dress up and get their haircut and wear ties and wear the colors of the crane.

David Craig – Host:

From your experience, on these larger cases, the catastrophic, the wrongful death cases, how successful is mediation?

How Successful Is Mediation in Larger Cases?

Barry Bitzegaio:

It’s wonderful. I mean, I think that the settlement percentages in mediation generally is very high. The settlement percentages in catastrophic motor vehicle accident cases, particularly those involving trucking concerns, I think is really high. The risks are extreme. The people that are handling the claims usually on both sides are professionals. There is some significant variation in quality of representation occasionally, but preparation for the mediation is everything. Getting as much information as you possibly can in advance of the mediation or during the mediation into your opponent’s hands is important.  There are a lot of background people that have to be lined up. You may have had medical bills or disability payments that people or companies are out there wanting their money back. They need to know what the circumstances are. They need to be at least in the loop.

Barry Bitzegaio:

Mediation really helps identify the nature of the problem on the injured person’s side, or their family, and what their needs are. I think that it, again, I’ve used the term humanizes, but that it really humanizes the problem for both the claims side of it and, of course, for your own clients. I don’t want to talk about percentages, but 90% of the cases get resolved in mediation. Doesn’t mean they all do but it tells us when we got to try them. We’re not trying cases that we don’t need to try. We’re trying cases that just because one reason or the other, often liability issues, we got to try.

David Craig – Host:

In your experience, is it uncommon in the larger cases to have to mediate it a second time?

Barry Bitzegaio:

No. No. Usually in fact, and I have to say sometimes I’m at fault, I mean, I didn’t realize something had to happen and I should have. I’m supposed to be the settlement guide, I should have known that, but there are things sometimes that are overlooked, or more often just known, but inadequately analyzed. Parties perhaps haven’t been included that we may want to have included, and it’s frequent that we have mediation. If it doesn’t succeed, we mediate again formally with all people together. Even more often, we have telephone contacts as we continue the process after the mediation. Get on the phone and you’re talking to people and gathering information and the positions change from the parties, both sides.

Barry Bitzegaio:

So yeah, I mean if you don’t settle in mediation, it’s not over. I think most mediators will love nagging people so much they continue to call and inquire probably beyond the time when they should quit. But yeah, particularly on a big case. There are a lot of things that need to be dealt with and people get tired. I mean, you go in and you’re going to spend five, six, seven, eight hours in difficult negotiations. Sometimes it’s good to call time out. Let’s go regroup and rethink, and then come back and talk about it another day. Continue to move on a trial track so you can get to the courtroom, but the mediation, I think, will help you advance your case in a way that is really positive.

David Craig – Host:

Do you think it’s important that all the clients, if they’re in the process, let’s say, of getting ready to hire attorneys, there’s obviously a lot of different types of lawyers out there that handle injury cases and wrongful death cases, how important is it for them to hire somebody who actually does try cases? Does that make a difference at all? In the negotiations, when you’re in there talking to the insurance company, there are probably some lawyers who never go to trial, and there are probably some lawyers who do go to trial.

Barry Bitzegaio:

The insurance company knows who will not go into a courtroom. I mean, it’s brutal at times. I mean, that problem is probably diminished as the market has sorted itself out, I suppose some. The insurance carriers, if they know you are not willing to go to court, that you are going to try to settle that case, and that you’ll drag it out for years and years and years and years because you’re afraid of the courtroom, then they will absolutely sit upon you. Some cases, like trucking cases, they’re unique.

Barry Bitzegaio:

I mean, there’s a unique set of information that you have to know that you need. You have to know where to go to get it, and you have to know how to acquire it. You don’t just pick up a case like that and suddenly know everything that is relevant. You can go to seminars all your life, but you have to have a little experience in working with that. In fact, lawyers that I know that somehow have a client come to them who has an injury problem, they talk to me. My recommendation is find somebody that does that kind of work and work with them because it is a difficult field.

Barry Bitzegaio:

Your opponents on the industry side are very well funded. The lawyers are extraordinarily well skilled, very well skilled. They have a nearly unlimited war chess to address it. They’ve looked at some verdicts. I think there was one in Georgia, like $280 million, which they’ll recite to you, just like the McDonald’s coffee case. So, the defense industry uses that to say, “Hey, spend more money on us in order to fight this case,” and the consequence is that the plaintiffs’ bar has to spend more money to meet the efforts of the defense bar.

Barry Bitzegaio:

So, there’s a bit of an escalation. Plaintiffs’ lawyers that do this, they know how to kind of cut through it, and they know they don’t have to respond to everything. They have to kind of take their own tack and let their approach on the case guide how that case is constructed, not just react to what the defense is going to do. Big accidents, the defense is out there, bam, the moment it happens. They’re all over it. Having somebody that knows how to handle a trucking case in particular is really important.

Barry Bitzegaio:

So, if you happen to go to your great friend or your nephew who happens to be a lawyer because you got hurt in a case, say, “Hey, do you know anybody that handles these regularly? Would you be willing to associate with them?” That’s going to be very, very important. That quality of counsel from the perception of the insurance industry, from the perception of the trucking industry, the quality of your counsel is huge in a case like that.

David Craig – Host:

Well, Barry, any final thoughts from the perspective, again, of the average person who has never been through this process, your final thoughts on what they need to know about the mediation and the mediation process that we haven’t talked about?

Barry Bitzegaio:

Of course, I’m a mediator. I really love the process because it does involve the people. So, when you go into a mediation, be open. This is going to be one of the greatest learning experiences of your life, for better or for worse. It’s an opportunity in the final analysis that you have some control of the outcome. Nothing happens unless you say it does happen. Listen to your lawyer. Your mediator may be a really nice guy and well dressed, or a nice lady, who is very articulate, but the mediator has an agenda. You really need to have a good lawyer. You need to trust that lawyer. You need to listen to that lawyer. If the mediator and the lawyer both respect one another, and you’re having a discussion and you decide the mediator is getting the better of that discussion, then when there’s a time out, go to your lawyer and say, “Hey, I think he’s right,” and then see what your lawyer has to say about it.

Barry Bitzegaio:

Really, it’s a better process than the courtroom because it’s something where the people who are most involved actually get a say on how it comes out. You don’t turn it over to some stranger to tell me here is the answer to the most serious problem I’ve ever had in my life. No, I get to control it just a little bit. I’m going to be the person that sits there and pulls the levers. I’m not going to turn it over to somebody I don’t even know who they are yet.

David Craig – Host:

Well, Barry, thank you very much. Again, this has been After the Crash, the podcast, and this has been Barry Bitzegaio as our guest. And Barry, I appreciate all of your insight.

Barry Bitzegaio:

Great. Thanks very much for having me. I look forward to working with you in the future and be reasonable.