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Confessions of a Mediator, Part 2

On Behalf of | Mar 27, 2019 | Firm News

Based upon the positive responses I received from my blog post entitled, “Confessions of a Mediator,” I thought I would share with you three more practices that I see from lawyers who get the best settlements (either on the Plaintiff or Defendant side). First, they explain to the client what is (or is not) going to happen at mediation. Second, they get their ducks in a row well before mediation. Third, they understand that no one likes surprises at mediation.

As lawyers, we attend dozens of mediations every year. It can all start to become fairly routine for us. But remember, your client (especially if you represent the Plaintiff) has likely never been through the process. They have no idea what is going to happen.

Take, for instance, the Plaintiff who showed up at mediation thinking that they were going to get cash money at the end of the day. Or, the Defendant truck driver who showed up at mediation thinking that there was a chance he was going to jail if things didn’t go very well. Or, finally, the Plaintiff who nearly stormed out of mediation because the insurance company did not pay his first demand.

All of these problems (and trust me, some of them are big problems) could have easily been avoided had the attorneys taken the time to explain to their clients what was going to go on at mediation. Let your clients know what is (and is not) going to happen at mediation. Explain to them that the mediator will be visiting with all sides and that everything said to the mediator is confidential. Let your client know that mediation can be a slow process that, often times, cannot be rushed. Finally, explain to your client all of the things that you take for granted when you walk into a mediation (i.e., that the defense is not going to pay the first offer; that your Defendant client is not going to go to jail at the end of the day; and that no one is bringing them an actual brief case full of money that will be exchanged at the end of the day).

Second, the lawyers that get the best results at mediation get their ducks in a row well before mediation starts. From the Plaintiff’s side, that means the lawyers are in contact with any lien holders to let them know about the mediation and that a decision maker for the lien holder may well need to be available to help get the case settled. Nothing can kill momentum in a mediation like a Plaintiff lawyer saying, “Well, I haven’t spoken with the workers’ compensation lien holder yet. I guess I need to get on the phone with them now.” And, of course, what the Plaintiff lawyer doesn’t know is that the adjuster for the workers’ compensation carrier is on a two week vacation and no one is taking their calls. The result? A case that can get settled doesn’t get settled and everybody walks away frustrated.

From the defense side, good lawyers will reach out to a Plaintiff’s attorney at least 45 days before mediation to verify the economic damages that are in play. I will discuss this further in the third section of this blog; however, trust me when I say that things do not end well when a defense lawyer (and an adjuster) show up at mediation thinking that the Plaintiff has $25,000.00 in medical only to have the Plaintiff’s attorney announce to everybody that the Plaintiff’s medical bills are actually $178,000.00. To say that this type of information is a non-starter is an understatement.

Another thing that defense lawyers can do is reach out to the Plaintiff’s attorney and make sure that everybody has the same medical records and expert reports going into the mediation. Again, it does no good for the defense to learn, for the first time at mediation, that the Plaintiff has a life care planner who has put up a life care plan worth $4,370,000.00. At that point, I feel like I am rearranging deck chairs on the Titanic.

Finally, the lawyers who get the best settlements realize that nobody likes surprises at mediation.

If you represent the Plaintiff and your client has incurred additional medical bills – or has undergone an additional surgery – that you think the other side may not know about, let them know immediately. It is much better to postpone a mediation so that everybody can process new information than to show up at mediation and dump a bunch of new information on an adjuster. Having done defense work for over 32 years, I can tell you that doing this almost guarantees you are not going to settle your case.

If you are representing the Plaintiff and you have a great piece of evidence (or great expert report or something you think is going to help get your case settled) you should really think long and hard about disclosing it to everybody well before mediation. I can’t say this strongly enough – insurance companies and adjusters don’t like surprises. They can’t process potentially case-changing information on the fly. Trust me, I have seen it happen too many times where a “new expert” is revealed at mediation by the Plaintiff’s attorney in the hopes of prying more money loose from an adjuster. I’ve never see that end well.

From the defense side, if there are additional layers of insurance that may even remotely play into getting the case settled, notify all of those carriers. Nothing is more disheartening than working diligently to get all of the parties and attorneys to show up at a mediation to then learn that the target defendant has excess coverage, and, oh by the way, the excess carrier has never been put on notice. Not only do these cases not settle at mediation, but they also create unnecessary distrust and friction amongst lawyers. And it is so easily preventable.

So there you have it. Three more practices that will help you get your best settlement at your next mediation. Let your clients know what is (and is not) going to happen at mediation. Get your ducks in a row – early. Finally, while most people like surprise birthday parties, no one likes surprises at mediation.

Good hunting!


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