What Is Mediation?
Mediation is beneficial because it gets a matter settled. Uncertainty is eliminated. There are no additional ongoing expenses and there is finality.
What is the best time for a mediation? It can be anytime. In a business dispute pre-litigation discussion can result in savings of tens of thousands of dollars in attorneys fees and costs. Personal injury cases have multiple time lines. Statistics show that more than 98% of civil cases settle before trial. Why not settle your case now?
Who is the best mediator for your case? Mediators come in many styles and forms.
More than thirty years of litigation practice has provided me with extensive experience as an advocate for a wide variety of cases. As an attorney, I have represented both plaintiffs and defendants. My litigation experience includes general civil litigation, business and contract disputes, government tort liability, real estate, construction, and personal injury matters of all levels. I have a hands-on basis for understanding the needs of the parties in a dispute.
Having represented both sides as an attorney enables me to bring a balanced approach to the negotiation process. My ADR style is based upon a belief that the purpose of mediation is to assist the parties to find a resolution of their respective needs. My background and experience enable me to be either facilitative or evaluative as the circumstances require.
Often a combination approach is the best way to arrive at a settlement, Many times one or both sides are either polarized or have unrealistic expectations as to the valuation of the case. As a mediator I can often provide a fresh perspective which allows the parties to reach a settlement.
If you represent the claimant in a personal injury case, have the injuries resolved? Are there ongoing complaints, residual injuries or a need for future treatment? Has the plaintiff returned to work or pre-accident level of activity? Has the case been referred to ADR by the court? Is there a trial date?
Has the necessary discovery occurred? Defendants almost always require a deposition of the plaintiff to assess the credibility as a witness. If the facts are in dispute, depositions of all parties and witnesses may be necessary. Has counsel made a detached evaluation of the deposition performances of all sides? If causation is an issue, technical discovery, including expert depositions, may be necessary.
Has counsel made a realistic evaluation of the type of case and the potential outcome? What is the cost-benefit analysis as to whether a trial or negotiated settlement would be in the best interest of the client?
For the Mediation Hearing
Mediation briefs are always appreciated. Serving your brief on the other side sets out clearly your position on liability, causation and damages. Matters that are important for settlement purposes but truly confidential can be addressed in a separate brief to the mediator.
Plaintiff should bring all pertinent medical reports to the mediation, along with the medical bills. What are the Howell numbers? Have you contacted the medical insurance carriers or Medi-Cal to confirm the amounts of their liens? Are they willing to negotiate? If medical treatment is on a lien, how flexible are the providers? If future care and treatment or surgery is necessary, what are the cost estimates? Will this be an out-of-pocket expense or be subject to additional reimbursement?
Has any claim for loss of earnings been properly documented? Have all property damage claims been resolved? Are there any other outstanding liens of any type?
Does your client really want to go to trial? Is he/she looking forward to a public forum to vindicate a position? Or is your client terrified of the prospect of even being in the courthouse? Use the private session with the mediator to allow the client to tell his or her story.
How about liability? What may not be in dispute at a mediation may be the subject of thousands of dollars of expert expense down the road. Have you spoken to your client about the settlement process? Does your client understand the settlement value of his/her situation? If the client has an unrealistic expectation, use the mediator to provide a reality check.
Defense counsel: are you the handling attorney, familiar with the details and intricacies of the case? Or are you filling in due to a schedule conflict? Same question for the person who controls the purse strings. Is this your file or are you covering for someone? Has the matter been round tabled? What is the downside potential if the matter goes to trial and goes plaintiff’s way? What is the scenario upon which you are basing the evaluation? What facts would change the evaluation?
It is never to late to discuss settlement
It is never too late to discuss settlement. The Riverside TAM program provides mediators for cases that are answering ready for trial. These cases typically have been through at least one prior settlement conference or mediation. Experts have been designated and deposed, witness lists have been exchanged, trial subpoenas have been served, exhibit books have been created and a stack of motions in limine have been filed. With all this preparation and legal activity, about one third of these cases are settled the day of trial.
So, even if you do not reach final agreement at a mediation, keep the lines of communication open