Preparing for Mediation


When Should a Case be Mediated?

Timing for mediation is often critical. A simple case often can be mediated prior to suit being filed. In a more complex case, such as a medical malpractice case or a product liability case, it is often necessary to have at least expert witness reports prior to deciding to mediate. The key regarding when a case can be mediated successfully is how much information the parties have shared with each other. A case can be successfully mediated as soon as each side has exchanged sufficient information so that it can be fairly and honestly evaluated.

Many cases pending in the Western District of the Federal District Court of Missouri are referred to the Early Assessment Program. The Rules specifically require the mediation to occur at a very early time, often before Rule 26 Disclosures have been made. In the Southern Division, it is sometimes possible to get an extension of the date required by the Rules until after the Rule 26 Disclosures have been made by each party. The opportunity for a successful mediation resulting in a settlement at the Early Assessment Mediation is greatly enhanced if the parties have either exchanged the Rule 26 Disclosures. If there is any question regarding the timing, please contact me at (417) 447-2222 to discuss whether to attempt to obtain an extension through the Court's Administrator.


Who Should Attend the Mediation?

Certainly, both attorneys need to be present. Other people who may need to be present are the plaintiff(s), claims representatives for the insurance company, corporate representatives, the insured defendant, and lien holder representatives. All of the above individuals are certainly not needed in every mediation. The typical attendees are counsel for both parties and the plaintiff(s). Often, the defendant appears through an insurance company representative or the attorney representing the defendant. If it is absolutely necessary for a claims representative from the company to appear in person, the attorney needs to discuss that before the mediation to make sure that person can be present at the mediation.

Talk to the other attorney before the mediation about who you want to make sure is present. Decide if it is important if that person is present in person or by phone. Ask the mediator for his or her input on these issues. Work these issues out before the day of the mediation. It is often not necessary for the claims representative to be present in person. It may be preferable, although there are cases where it has been to the advantage to the negotiators to have that person available by phone rather than in person. Again, this is something that needs to be discussed and agreed upon prior to the day of the mediation.

Presentation Style/Format

Things to consider when preparing your presentation for the mediation are what type of style or format you want to present to the other side. Do you want to be informative, aggressive, conciliatory, or a combination? Decide who your audience is that you are trying to persuade...the attorney on the other side, the claims representative, the other party, the mediator.

What exhibits do you need to effectively present your case to the opposition during the mediation? Consider video statements of doctors, lay witnesses, experts, etc. Consider whether or not you should allow your client to talk to explain his or her position or the effect that the event has had on your client. Always review the negotiation history with your client and decide where you want to start the day to save time during the mediation.
Above all, make sure all relevant information is in the hands of the other side long before the mediation. The kiss of death is to provide new information on the day of the mediation which gives the opposition an excuse for doing nothing that day since it has not had time to evaluate the new data and incorporate it into its evaluation. If the case justifies it, consider getting video statements of witnesses, treating doctors, experts, etc. Use blow-ups of deposition testimony, jury instructions, case law, statutes, etc. In a large case, put this data on CD ROM or DVD format and send it to claims people long before the mediation so that insurance company has ample time to get sufficient authority to settle the case at the mediation. Remember, if your case justifies the payment of a large sum of money, you must prepare your presentation effectively to convince the insurance company that it should do just that.

Preparing Yourself for Mediation

In preparing yourself for mediation, make sure that you know your client and understand your client's needs and emotional background if it affects the case. Know your file intimately. Know the facts, the medical history of similar injuries and problems, and the medical history relevant to the case. Know the law that controls the case. Know and be able to demonstrate with copies of Lawyers Weekly and other verdict services verdicts in the area in similar cases. Likewise, know about settlements in your geographic area in similar cases.

Preparing the Client for Mediation

Thoroughly explain the mediation process to your client. Control the client's expectations of the process and thoroughly explain your case evaluation. Fully and completely explain the process that you go through in evaluating the case to your client. By this I mean, the client should understand the good points in his or her case, the bad points in his or her case, and everything in-between.

Make sure the client understands that your presentation is intended to persuade the opposition that your evaluation is more likely to persuade the jury than theirs. Make sure the client understands that everything you say regarding damages awarded by a reasonable jury is not necessarily going to happen.

Do's and Don'ts of Mediation

DO:

• Trust your mediator.
• Give clear signals.
• Be prepared to give your mediator ammunition to convince the money people it is more likely that 9 out of 12
  jurors will find the case to be consistent with your evaluation rather than the other side's (provide the mediator with facts, case law, verdicts, settlements in similar cases).
• Be intellectually honest in your evaluation.
• Provide all relevant medical information and bills to the defense as far in advance of the mediation as possible to allow ample time for a fair evaluation.
• Pave the way for further discussions if the case doesn't settle the day of mediation.

DON'T:

• Start negotiations the wrong way
  a. Exception- pre-judgment interest demand in appropriate cases. 
  b. Always explain the pre-judgment interest demand to claims people long before the mediation because many don't understand the purpose of a pre-judgment demand under Missouri Statute. Make sure, if you plan to begin negotiations at a number higher than the pre-judgment interest demand, that you communicate that in writing to either the claims person or the opposing attorney so everyone has a very clear understanding of where the parties are when the mediation begins.
• Provide new medical bills or records for the first time at the mediation. Insurance companies must have time to review medical information.
• Give false signals.
• Expect the other side to agree with your client's or your evaluation and/or perception of the case.
• Yell at your mediator when the other side doesn't agree with your client's perception and/or evaluation of the case.
• Argue with the mediator about the other side's analysis. Rather, give facts, verdicts, settlements, law (ammunition) for the mediator to use.
• Get in a hurry (it takes time to reverse a lobotomy).
• Despair (just because a case does not settle the day of the mediation, does not mean it won't settle down the road).
• Leave before the money person is on the phone and has exhausted his or her authority.
• Leave until you know how much the defendant will pay/plaintiff will take.
• Waste opportunities to give information and reasons why the odds are on your side that your evaluation will prevail with the jury.
• Be unreasonable.