Jonathan Silbert
Jonathan Silbert (Picasa)

There’s no longer any doubt that mediation has proved itself a civilized, satisfying and cost-effective way to resolve personal injury cases. This article will analyze some of the conditions that tend to promote successful mediation with the hope that it will help attorneys maximize their chances of mediating their cases productively. There is far more to be said on the subject than can fit into this article, but here are a few thoughts on some critical aspects of the process:

When To Mediate: I have mediated cases pre-suit, at various points on the discovery continuum, on the eve of trial, and, in some instances, during trial. Experience suggests that mediations conducted within a month before jury selection are the ones most likely to succeed. Why? For one reason, since discovery has been completed, experts deposed, and transcripts of their testimony in prior cases read and analyzed, few mysteries remain other than who will be the six strangers chosen to decide the case, and how will they react to what we know they will see and hear.

For another and very important reason, everyone’s feet are about to be placed to the proverbial fire, and the risks that each side faces, for so long on the back burner, are now imminent and palpable. These factors combine to create optimal settlement conditions.

This is not to say that cases cannot be resolved far earlier. I have settled multimillion-dollar death cases before suit has even been brought when parties felt they knew enough about the potential risks and rewards to have intelligent mediated settlement discussions without needing to delve into all the minutiae. All other things being equal, however, the closer they are to trial, the more likely it is that the parties will be positioned to make intelligent, risk-based settlement decisions.

Presence Of The Parties: Mediation is far more likely to succeed when the parties in interest are physically present. For the plaintiffs, the mediation should serve as the functional equivalent of their “day in court.” Therefore, plaintiffs should have the opportunity to meet personally with the mediator, understand the mediator’s approach to settlement, ask any questions they have about the process, and feel that a neutral mediator has heard and understood them. The mediator’s skill set must include the ability to allow this to transpire productively while not compromising the time needed to facilitate negotiation.

Mediators have different approaches to meeting parties. For some, simply introducing themselves seems to be sufficient. Others meet jointly with the plaintiff, defendant (or insurance adjuster) and counsel for both sides in the same room. My concern about group meetings, especially those in which each side gives opening statements (which too often veer toward denigration of the other side’s case), is that they tend to create the wrong mood with one or both parties feeling intimidated. If there are weaknesses in either side’s case, it is better that the mediator be the one to explain them privately, either directly or through counsel, rather than having a party hear about them from opposing counsel

I prefer, following a brief meeting with counsel to ensure we are all on the same page, to then meet privately with the plaintiff and his or her attorney to explain the mediation process from my perspective. This is a significant investment in time (30 to 45 minutes) for me, but if it results in the plaintiff’s having faith in the process and wanting it to succeed, it is time well spent.

Generally speaking, most insurance adjusters, who have attended many mediations, do not need this kind of “pep talk,” but do need to be included in the discussion. Worth noting, however, is that quite often the defense attorney handling the mediation and, almost certainly, the adjuster have never met the plaintiff. Under such circumstances, the mediator should consider offering them the opportunity to meet and size up—but not cross-examine—the plaintiff.

Ideally, the adjuster for the defendant’s insurer should also be physically present at the mediation. Not only does the adjuster who participates only remotely miss out on the opportunity to meet both the mediator and plaintiff face to face, but it is also far easier for that adjuster to say “no” to a settlement suggestion via a phone call to defense counsel than to do so, and explain why, in person.

When distance is a problem (and mediators understand that having a California-based adjuster fly to Connecticut is often impractical), an adjuster who is immediately available by telephone may be the best one can do. Computers and smartphones equipped with Skype, FaceTime and the like are even better at helping bridge that gap, and defense counsel should consider making such arrangements well in advance of the mediation.

Position Statements: Each mediator has his or her own approach to this topic. My aim is to be able to hit the ground running with enough information about what the parties are like, what each side says happened, who the likely witnesses are and what the medical picture looks like, so that I have a solid understanding of the issues in dispute and the questions I need to ask in order to be helpful. I therefore request a position statement of up to 10 pages of text and up to 15 pages of exhibits, to be exchanged with all counsel, but with the opportunity to present an additional, brief confidential statement, if desired.

I want to be educated by the exhibits, not inundated. Accident and vehicle photos, when available, final medical reports, X rays and post-accident photos of the plaintiff, day-in-the-life or other relatively brief videos are all useful exhibits. Illegible doctor’s notes, copies of each and every visit report, and the dreaded full deposition transcripts are of no help at all.

Financial Information And Lien Issues: It is, of course, essential that both counsel thoroughly prepare for the mediation, and this includes a compilation of medical expenses, documentation of lost earnings and earning capacity, and collateral source information, such as documented insurance premium costs. If there is an ERISA lien, the materials should include valid documentation, not an (often bogus) generic letter that claims a right to reimbursement. If there are Medicare or state liens, counsel should find out what they are and, if they are valid, whether they can be compromised. No insurer is going to go out on a limb and issue a settlement check when there may be a Medicare lien that has not been fully taken into account.

Value: The bottom line in a personal injury mediation is settlement value, which in turn means, how can the risks and rewards be balanced so that each side feels reasonably equally confident that while giving up the highest of its hopes, it has also avoided the worst of its fears? Some posturing by counsel is, alas, unavoidable in trying to find the settlement value of a case, but to the extent that counsel are able to approach mediation with sensible and articulable expressions of the range of possible outcomes and the likelihood of their occurrence, the prospects for reaching an acceptable resolution will be significantly enhanced.•