Recently, I have conducted two mediations that did not resolve largely due to the fact that there were unresolved issues involving plaintiff’s treatment in one instance and the production of documentation supporting the claimed compensation due in an employment matter shortly before the mediation in the other instance. Both issues were significant in assessing the value of each case and had the information been provided well in advance of the mediations, the opposing parties could have better assessed their settlement positions before the mediation, rather than on the day of the mediation. The takeaway that prompted this blog is simply this: Do not skimp on preparing for your mediation! If you want the mediation to be successful, you should put the same amount of time and effort into preparation as you would for a deposition, a hearing on a motion for summary judgment, or an appellate argument.
Well, ok, what does that mean? First of all, you need to have the information to support your claims, damages and/or defenses. Recognize that the mediator only has the information that you provide about the case. A good mediator will read all of the materials provided and conduct their own research based upon the materials provided in order to prepare for your case. Thus, the more information that you can provide to your mediator, the better positioned the mediator will be to successfully resolve your case. This requires you to do the work upfront, but it is worth it.
Secondly, contact your opposing counsel to gauge whether mediation is appropriate in the first instance and set expectations. Have a candid conversation with your opposing counsel about your initial thoughts on liability and damages. You will most likely not agree in this regard, but you can determine whether a mediation at that juncture (or, if at all) would be productive. If plaintiff’s counsel believes the case is worth $10 million and defense counsel believes he or she is going to defense the case, then the case is probably not ripe for mediation. But, if your discussion with counsel leads you to believe that the other side has reasonable expectations concerning the case, then mediation may be beneficial.
Preparing for the Mediation
So, you believe that a mediation is appropriate following your discussion with counsel. How do you prepare for the actual mediation to put your client in the best position to resolve the case? The best way to demonstrate the necessary preparation is by way of an example. The case is a motor vehicle personal injury case. Generally, liability is not in dispute. The only issues are causation and damages.
During discovery, plaintiff disclosed that he was involved in another motor vehicle accident a few weeks after the subject accident. In the intervening period between accidents, plaintiff sought medical treatment for injuries sustained in the first accident. Following the second accident, plaintiff complains of pain to many of the same areas he was complaining about following the first accident. After the second accident, plaintiff continues to treat. In the lawsuit for the first accident, plaintiff is claiming a traumatic brain injury, as well as injuries to other parts of his body.
Clearly, the central issue in the case will be the traumatic brain injury claim. Plaintiff will argue that the injury arose from the first accident, while the defense will contend it was the result of the second accident as a means to discount the claim. This will undoubtedly be the focus of the briefs from counsel. But the information supporting these respective positions is essential. That means for the mediation, you should:
- If, at all possible, have parties from both accidents agree to mediate the case to kill two birds with one stone;
- Set realistic expectations for your clients and principals;
- Have photographs and repair estimates for both accidents to assist in assessing the nature and extent of the impacts involved;
- Have all of the medical records and billings from the date of the first accident through the date of the mediation;
- Compare the complaints, the body parts in question, and the pain levels made to the healthcare providers, as well as proposed treatment relating to the first accident with those relating to the second accident – is there any difference in complaints, pain levels or treatment? Any new complaints following the second accident?
- Was there any loss of consciousness for either accident documented? Anything documented in the records indicating that plaintiff struck his head in either accident?
- Compare diagnostic films from the first accident and second accident for the same body parts – is there any difference between the films?
- What does the plaintiff say about the complaints from the first accident and second accident? Is there any discrepancy between plaintiff’s testimony and the medical records?
- What do the experts say about the complaints, diagnostic studies, and more importantly, causation?
- Will future medical treatment be needed? If so, what is it and how much will it cost? And how would it be allocated between the two accidents?
Neither side can plausibly advance the argument that there is, or is not, a traumatic brain injury from the first accident without this information. Nor can the parties or the mediator effectively value of the case because there is no information to determine whether the second accident exacerbated any injuries from the first accident or whether there were new injuries separate and apart from the first accident (particularly if both cases are mediated at the same time).
Information that demonstrates the complaints or pain levels were worse following the second accident would give the mediator much needed information to address the causation and allocation issues present. Similarly, comparing diagnostic studies from the two accidents showing an abnormal study following the first accident that did not change after the second, or the complaints did not change after the second accident, would also be extremely helpful.
Additionally, updated medical specials and any anticipated future medical specials specified in a life care plan or through expert witness testimony are necessary in assessing the value of the case. This is extremely important particularly if there is insurance involved. Claims professionals need this information to obtain the necessary settlement authority in advance of the mediation. Thus, do not withhold information until the day of the mediation that will significantly impact the value of the case, such as a previously undisclosed injury or the fact that surgery is now indicated. Any anticipated surprise or gotcha moment will not be beneficial and may very well sabotage the mediation.
Preparing for mediation is not a novel idea, but one overlooked by counsel far too often. Cases are mediated pre-litigation and at various stages of litigation. Whenever you choose to mediate your case, put the time and effort into your preparation well in advance of the mediation so everyone has the needed information to assess and value the case.
MDR provides mediation services to help you resolve your civil litigation matters. We take the time to review all information provided by counsel and conduct any necessary research to address issues in the case so that when you arrive for the mediation, we are ready to hit the ground running to successfully resolve your case. Contact us today to schedule your mediation.