Abraham Lincoln once said that if he were given six hours to cut down a tree, he would spend four hours sharpening his axe. This may seem a bit anachronistic in the digital era but the essential point rings true; especially whenit comes to mediation of personal injury cases.

Many attorneys see a day spent in mediation as not particularly heavy lifting: drafting a mediation statement and scribbling a few ideas on a legal pad. A day in mediation is a lot easier than taking an expert’s deposition and far, far easier than time in trial.

Comfort zones, however, can instill complacency. If we view mediation of a personal injury case as the client’s day in court, is there any room for casual lawyering? Let’s focus on how plaintiff’s counsel can prepare to make a personal injury mediation both meaningful for clients and successful.

• Eliminate surprises. While “Perry Mason moments” may have a place in the courtroom, they don’t help you in dealing with insurance adjusters who roundtable, value, and reserve cases weeks before the mediation. Update your medical specials well in advance, share tax returns and lost income information, and ask if the adjuster and defense counsel have everything they need to assess the case. If the case is grossly under-reserved, you are not going work miracles at mediation and the case is unlikely to resolve. Proper reserving is as much a function of advance work by plaintiff’s counsel as proper evaluation by the carrier.

• Get liens under control. Contact the lienholders to try to negotiate liens well ahead of the mediation. Let them know of the date and time of the mediation and get phone numbers where they can be reached during the mediation if lien issues become important. If you are dealing with CMS (Centers for Medicare and Medicaid Services), get a conditional payment letter ahead of time. If you have a large workers comp lien, invite the carrier to attend the mediation with counsel.

• Make a demand well before the mediation. This goes back to the concept of surprise elimination. Don’t walk into the mediation without a prior written demand on the table. Demands assist the reserving process. They also ensure that the claims person who shows up at the mediation is someone with appropriate settlement authority.

• Prepare a negotiation game plan. The best negotiators prepare hard. Instead of just coming up with a “bottom line,” it may be useful to work up three settlement ranges: (1) the “home run” settlement that would exceed expectations; (2) the good settlement that makes everyone reasonably happy; and (3) the difficult settlement that will be a challenge but possibly could work. It also may help to anticipate starting offers and responses, and to identify information that can be provided to the mediator to help in the other room. If there are key documents that refute anticipated defense arguments, prepare extra copies to provide to the mediator. Come to the mediation armed with a breakdown prepared of litigation costs to date and expected litigation costs through trial, so you can counsel your client on the true economic value of a settlement today versus taking the case through trial.

• Meet your client in advance. Most personal injury clients are unfamiliar with mediation and come into the process, at best, nervous and uncertain; and at worst, terrified. Sitting down with clients to explain the process in person a few days before the mediation is time well-spent:

√ Walk through the nature of mediation and how a typical personal injury negotiation may go.

√ Talk about the role of opposing counsel and the role of the mediator.

√ Cover the confidentiality of the process and the need to stay off social media.

√ Discuss issues that may come up in the mediation and potential settlement ranges.

√ Decide together if your client will have a speaking role in a joint session and what might be said.

√ Provide the client with a copy of mediation submissions by opposing counsel and go over these.

• Bring along a structured settlement advisor. If this is a large value case where a structured settlement might have a role, consider inviting your own structured settlement advisor to the mediation. There are capable people in this field who will attend mediations without charge and assist your client in understanding ways to invest a settlement to provide tax-free income, protection, and growth. While structures are not suited to every case, they can play an important part in a significant case.

• Plan something to say. Hopefully, you have shared a detailed written mediation summary with both the mediator and opposing counsel in advance of the mediation. This should be an advocacy piece that fully and fairly presents your case. Your written submission, however, does not take the place of oral advocacy. If there is going to be a joint session, use this as a chance to highlight “big picture” issues or to directly address issues that you know will be important to the defense. The most effective counsel do not use the opening statement for chest pounding and threats, but instead focus on being persuasive to their target audience: the adjuster. Credibility is just as important in mediation as in trial, so concede points you can’t win, but offer compelling reasons why the case creates risk for the defense side. Visuals or handouts can be effective in this process, if judiciously employed.

• Mediations count. They are an opportunity to give defense counsel and the adjuster a chance to see what they may face at trial. They are a chance to present your case in person rather than on paper. They are also a vitally important day for clients, who have a day to participate and decide whether to resolve their case or take it to trial. Taking the time to properly sharpen  your axe can make a real difference in what could be the most important day in your client’s case.

This article first appeared in the Maine Lawyers Review – June 27, 2019.

About the Blogger:

Gregory S. Clayton is a full-time mediator based in Camden, who mediates throughout Maine, New Hampshire and Vermont. He is a member of the National Academy of Distinguished Neutrals and a Fellow of the American College of Trial Lawyers.  

He may be contacted by email or at (207) 706 4977. Website