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Practical Tips for a Successful Mediation

Rob Erney April 15, 2019

Mediation has become a very important means of alternative dispute resolution. Over the past several years, it has become the primary method of settling cases with both plaintiffs and defendants. Mediation has become a part of the litigation process in virtually all civil cases. Mediators are highly skilled and specifically trained in communicating, listening and persuading parties, counsel and insurance representatives to compromise positions in order to achieve a global settlement. Proper preparation for the mediation is crucial to its success. The following includes practical tips for plaintiffs and defendants preparing for mediation.

From the Plaintiff’s Perspective

Timing of mediation. The timing for the mediation is critical. It is best to mediate two to three months before the trial date. That is when you have the most                 leverage.

Obtain initial discovery. Obtain paper discovery and the depositions of the parties prior to scheduling the mediation in order to permit all parties to be best                prepared for the mediation.

• Keep your trial date. You have a better chance of achieving a settlement at the mediation if a trial date is looming.

• Control your expenses. Keep your expenses as low as possible prior to the mediation. Schedule the video trial depositions of your treating physicians to take           place one or two weeks after the mediation date. If the case settles at the mediation you will have time to cancel these depositions without incurring any                     cancellation fees.

• Medicare / Medicaid liens. Request the Conditional Payment Letter from Medicare and an Interim Lien that can be Final from Medicaid in a timely fashion so they    are available at the mediation.

Mediation Position Statement. Prepare a great mediation position statement. Focus on both economic and non-economic damages. Provide medical illustrations     and photographs depicting injuries and damages. Consider using video evidence to demonstrate restrictions and limitations.

• Permanent Injury. If your client has a permanent injury, be sure to include a medical report with your mediation position statement. The medical report should            address causation, permanency and future medical care and treatment. This will give you the ability to argue future pain, restrictions and limitations. 

• Future lost earnings. If your client has a permanent injury that will prevent them from working, hire an economist to prepare a report about future lost wages.             Include the report with your mediation position statement.

• Properly calculate your Robinson number. Make sure it includes liens, outstanding bills, out-ofpocket expenses and bills paid by your client. Add to your past        Robinson number of future medical care and treatment and future lost income, if applicable.

• Be realistic. Make a realistic demand. Remember caps on non-economic damages are $250,000, up to a maximum of $350,000. Evaluate your case fairly,                 reasonably and rationally.

• Work with the mediator during negotiations. Do not take unrealistic positions. Realize that the mediator is working to help you achieve a better result than you      would most likely receive from a jury at trial. Be honest with the mediator regarding your financial goals. Trust the mediator’s instincts.

• Prepare your client for the mediation. Explain about current and past jury verdicts and arrive at a range of value with your client. Inform your client about the          cost of trying the case. Keep your client’s expectations low. If the mediation produces a better result than your range of value, your client will be more likely to            accept it and feel satisfied. 

• Subrogation. Communicate with counsel for the subrogated carriers prior to the mediation. Ask counsel for the subrogated carriers to attend the mediation or at         least be available by phone. Tell counsel for the subrogated carriers about your liability or causation concerns. If there is a defense medical exam report, send it to     counsel for the subrogated carrier prior to the mediation and tell counsel that you will need a significant reduction in the lien in order to settle the case.

• Make use of the pro rata subrogation statute. Send it to counsel for the subrogated carrier in advance of the mediation. Argue it. It is powerful.

• Communicate effectively. Communicate with counsel for the subrogated carriers during the mediation. Once you have the final settlement offer, call counsel for       the subrogated carriers from the mediation and if possible negotiate reductions at that time. Make use of all of the defense arguments on liability and causation.          This is important because most clients want to know their “walk away” number before they will consent to the final settlement offer at the mediation.

• Settlement agreement. Ask for a written agreement setting forth all of the terms of the settlement from the mediator upon conclusion of the mediation. • Timing of     settlement check. Make sure the written agreement addresses court costs and when you can expect to receive the settlement check.

From the Defendant’s Perspective

Certainly, the practical tips stated above apply to the defense, as well. In addition, defense counsel should consider the following:

• Have your decision maker present in person at the mediation. The chances of achieving a settlement are significantly increased if the adjuster or decision           maker is present at the mediation as opposed to being available by telephone.

• Communicate with opposing counsel prior to the mediation. Communicate with opposing counsel prior to the mediation regarding all economic damages,           subrogation liens, outstanding bills, other debts and payments made by the plaintiff. Make sure all parties have the same economic damages so you can properly       evaluate the case and there will be no surprises at the mediation.

• Carefully consider all non-economic damages in your evaluation. The Robinson v. Bates medical bills are only one factor in evaluating the case. In many             cases, the non – economic damages are the primary value drivers.

• Come to the mediation with a range of value as opposed to an inflexible number. Evaluating a case is not an exact science. It is necessary to place a range      of value for settlement purposes on cases due to the variables each case presents.

• Be sure to include all expert reports with your mediation position statement regarding liability and damages. Powerful expert reports will cause plaintiffs to    re-evaluate their settlement positions.

By following these practical tips, the vast majority of cases in litigation should settle at mediation. Remember, mediation is about compromise on both sides. This means that plaintiffs accept less money than they want, and defendants pay more money than they want. Generally, it is in the best interests of both parties to avoid the risks and costs associated with a jury trial.