The Importance of Pre-Mediation Preparation: How to Prepare your Client for Mediation
Wed, Dec 4th, 2024 | by Miles Mediation and Arbitration | Article | Social Share
The ongoing attempts by the United States, Egypt, and Qatar to mediate the war between Hamas and Israel bring to the forefront the potential that mediation can have to resolve conflict. Yet the use of alternative dispute resolution (ADR) dates back hundreds of years to 1066 in England. Even before The U.S. Constitution guaranteed the right to a jury trial, American colonists used mediation to resolve disputes between neighbors.
Today, most courts all over the country have adopted standing orders that requires all civil cases be mediated before the case will be assigned to a trial calendar. As a result, any lawyer involved in a civil dispute must be skilled and knowledgeable about the mediation process. One of the most important and least utilized skills in the mediation process is the preparation of your client for mediation.
Why Pre-mediation Preparation Matters
Experienced mediators agree that there are many factors during the mediation that either result in a settlement or an impasse. They also agree that one of the most important factors for a successful mediation occurs well before the day of the mediation. Having been involved in the mediation process for over 30 years as both an attorney and a mediator, I’ve found that the importance of pre-mediation preparation of the parties cannot be understated. While I’ll focus on preparing the plaintiff and defendant in a personal injury case, these preparation strategies work for any kind of mediation.
On the plaintiff’s side, it is likely that the plaintiff has never participated in a mediation — the entire process may be outside his or her everyday experiences. The opposite may be true for the defense; the claims specialist may have participated in numerous mediations for the insurance company. Regardless of the party’s mediation experiences, both must be prepared BEFORE the day of mediation to provide the best chance for a successful resolution.
Preparing the Plaintiff
Because the plaintiff has likely never been involved in mediation, it is essential to explain to the client the mediator’s role as a “neutral.” The neutral’s only goal is to assist the parties in reaching a mutually agreeable settlement. Emphasize that while the process may seem slow — and at times, frustrating — it has a high success rate in resolving cases without the necessity of a jury trial.
Set appropriate expectations for your client in terms of the negotiating process. Explain that the initial response of the defendant to the plaintiff’s first offer does not matter. What does matter is the amount of the defendant’s final offer when communicated by the mediator.
Before settling the case at mediation, your client will want to know how much of the settlement will go into his or her bank account. Make sure you and the client know what the outstanding litigation expenses and liens are, and what the potential reimbursement will be for those liens. Explain the back-and-forth nature of caucuses and begin a brief discussion about the potential use of brackets during the negotiations.
It is critically important that the plaintiff understands that mediation is a safe process because of the confidential nature of mediation. Explain that with very few exceptions, anything said at the mediation is not admissible at the trial and that the mediator can never be subpoenaed to testify about what occurred at the mediation. Your client cannot be forced to settle the case during the mediation; your client is in total control of the decision as to settlement or a jury trial. Review the risks and uncertainty associated with a jury trial in contrast to the certainty of a settlement at mediation.
Finally, preparing your plaintiff for mediation must include a detailed discussion into what your client wants in settling the case. In a personal injury case, typically no amount of money will relieve the pain or the limitations your client may live with. A settlement can, however, change the plaintiff’s life in a meaningful way. Talk with your client about what he or she would use any settlement proceeds for.
I always ask my clients to go home after our mediation preparation and write down a list of the things they want to do with the proceeds. Maybe they have credit cards or a car they want to pay off. Maybe they want to set up a college fund for their children or to take the family on a vacation. At the mediation, you can use the list to help clients focus on the positive effects a settlement can have on their lives—and their family’s lives — instead of how badly they are hurt.
Preparing the Defense for Mediation
On the defense side, it is equally important that you prepare your client, the claims professional representing the insurance company, for the mediation. These claims professionals are likely handling hundreds of cases and have many layers of decision-makers reviewing their handling of their files. As a defense attorney, you should make sure the claims professional reviews the detailed facts of the file before mediation.
Review the special damages being claimed by the plaintiff and ensure that the amount of “specials” being claimed by the plaintiff is the same amount used in the insurance company’s evaluation. Too many mediations fail simply because the two sides are not reading off the same sheet of music when it comes to special damages.
While you have likely included extensive detailed information about the case in your reports to the carrier, remind the claims professional of the important points in those reports. Talk about the history of jury verdicts where the case is pending and the plaintiff as a witness. Express your opinion about the skills of the plaintiff’s lawyer in front of a jury and the opposing lawyers negotiating style. If you haven’t worked with a claims professional before, ask how the person approaches mediation.
How does your client prefer to negotiate? How does he or she want to start the negotiations? Does your client like to use brackets during the process? Make sure your client understands that the start of the negotiations will directly affect how the plaintiff may negotiate. If possible, find out the amount of the evaluation and of the reserves the carrier has placed on the case. You should also know the internal process for the claims professional to increase the offer over the evaluation amount and/or the reserves at the insurance company.
Finally, remind the claims professional of the importance of active listening while the plaintiff presents his or her side and when the mediator discusses the issues during the caucus sessions. Through active listening, you can learn much about both sides’ strengths, weaknesses, and interests. This can help you and your client reassess your risks, respond to some of the other side’s issues, and provide motivation to reach a settlement.
At the time of this writing, mediators haven’t been able to broker a peace between Israel and Hamas. However, what has been true since ADR began in 1066, preparation of your clients before mediation will significantly increase the likelihood of success at mediation.
About Jeffrey Lasky
Jeffrey Lasky has been litigating and mediating cases on behalf of his clients for over 40 years. He has extensive mediation experience in many areas of the law including medical malpractice, wrongful death, truck and automobile wrecks, premises liability cases, product liability, and construction defects. In addition to securing jury verdicts in over 100 cases, Jeffrey has long recognized the value of resolving disputes outside of court, whether through mediation or arbitration. His initial mediation training was in 1993 and has continued that training and experience throughout the years since.