Litigation, as we all know, is an adversarial system. Plaintiffs’ attorneys have a duty to zealously represent their clients and to take necessary measures to ensure that the plaintiff is adequately compensated for his or her loss or injury. Defense attorneys have an equal duty to protect their client’s financial interests and reputation.
Although the plaintiff and defendant’s attorneys sit on opposite sides of the table, there are many situations where it benefits both our clients for us to work together. While some cases cannot be resolved without trial, in many cases early resolution is the best result for both sides because it allows us to avoid unnecessary costs (not to mention the time, energy and stress associated with litigation). I pride myself on being a trial attorney, and I chose this career because I was drawn to the courtroom, however, I also appreciate the fact that most cases should settle. There are a number of things that can be done prior to mediation that can help move a case in the right direction toward settlement.
Managing Client Expectations
An important factor in setting a case up for a successful resolution is to evaluate it early and accurately. If I tell a client we have a 75-85 percent chance of a defense verdict, it is hard to reverse the client’s expectations and tell them to pay a significant amount to settle the case at mediation, particularly if we have not been provided with significant new information.
From the plaintiff’s perspective, it is important for counsel to have a frank discussion with his or her client regarding expectations prior to sending out an initial demand package. I have seen many cases where the plaintiff has the dollar amount from their initial settlement demand stuck in their head and the mediator has to work very hard to adjust expectations.
Providing Necessary Data
When mediating a case with an insurance company or corporation, surprises on the day of mediation are not helpful. Defendants often have complicated processes of setting reserves on cases. Defense attorneys are typically required to provide pre-mediation evaluations 30 to 60 days prior to the mediation date to allow the client to place a reserved value on the case or to adjust the existing value. It is helpful if counsel produces all available data as to all damages claimed prior to mediation.
Bills, Bills, Bills…
It is not uncommon for us to hear information about “new” medical bills or some other newly identified damage during opening statements of mediation. Often, the failure to provide information in advance causes negotiations to fail as the matter has not been adequately reserved and additional value typically cannot be assigned to the case in one day.
During mediation, each side must evaluate the pros and cons of settling at a particular dollar amount. The Defendant is often weighing the risks and costs associated with trial versus the amount it will take to settle the case. The plaintiff, while also weighing the risks and costs of trial, is often asking his or her attorney “what do I get?”
Providing available billing and lien documentation allows the defendant to properly set reserves prior to mediation. If the plaintiff’s counsel has a good understanding as to what it will take to resolve the liens, the plaintiff can be advised as to what he or she will recover after the liens, costs and attorneys’ fees have been paid.
Ensuring that all available data is provided to the defense at least 30 days prior to mediation allows the defendant more time to properly reserve the claim and will increase the chance that a case will resolve at mediation.
Lost Wages and Profits
When a plaintiff is making a claim for lost wages the defense cannot simply take the plaintiff’s word for it. We see many cases where a lost wages claim is pled but ultimately dropped because it cannot be proven for one reason or another. If this is going to be a sticking point at mediation, the defendant needs the opportunity to evaluate tax returns, profit and loss statements, employment records, and other available data to support the claim. If a plaintiff is making a claim for loss of earning capacity yet was not working at the time of the accident, the defendant will need data to substantiate the claim in order to put a value on it. As mentioned above, if new damages documentation is presented on the day of mediation, that presents challenges in getting the case resolved.
The Benefits of Communication
Lastly, a pre-mediation phone call between the attorneys can be very valuable. Sometimes, each side needs to hear a strong opening presentation to understand the weaknesses in their respective cases. In other cases, a brief opening session where the defendant offers an apology to the plaintiff can set the stage for settlement. And sometimes, it’s best not to have an opening session at all. A candid conversation between attorneys about the personalities that will be present in the room can help to set the proper tone for a successful mediation. E. Holland Holly Howanitz