After you have secured a date and selected a mediator, it is important to prepare for the mediation. Although the benefits of mediation are often touted (e.g., the cost effectiveness, the expediency) it must not be forgotten that you have only one hour or so to present the facts of your case.
Preparing exhibits is essential to getting your message across to a mediator and your adversary. If your client suffered an injury in a slip and fall, you should have clear and accurate photos of the scene. Those photos should be blown up to a size that is easily observed from 8 to 10 feet (the average length of a conference room table). Using well constructed exhibits such as medical illustrations that are specifically created for your case will present well in front of the mediator and the defense counsel. (Remember – If your case does not settle, the mediation will represent a preview of how you will present your case in a courtroom. Making a presentation that shows that you re serious and organized will definitely be observed by your adversary).
Your client needs to be prepared for the mediation to the extent that he or she should have some preparation – vis a vis, reading and reviewing transcripts from depositions, review of statements made in accident reports (especially statements made in Police Reports taken at the scene of automobile accidents). In the remote chance a mediator wants to ask your client some basic questions, it is always best to provide, at a minimum, some rudimentary preparation prior to the mediation.
It is best to evaluate your case prior to attending the mediation. You should assess the injuries that your client sustained in the accident. Also, a well thought out analysis of liability should be made in advance of the mediation. (For example, if your client was in a car accident, did the offending vehicle strike your client’s vehicle in the rear or was it an intersection automobile accident in which the parties are both claiming to have green light signals? Of course, liability should not be an issue in the former instance. However, if the latter example, you may want to consider that the question of liability is 50/50).
Always enter the room and greet the mediator and defense counsel with respect and cordiality. You do not lose points by being courteous, in fact since mediation is a “friendly” proceeding, you may score points with your adversary. Sometimes that courtesy may translate into your adversary making one extra phone call to obtain more money to close the deal. In my opinion, defense counsel is not your enemy, rather he or she is merely your adversary. They are doing their job, just as plaintiff’s counsel is doing theirs. We all want to win, but negativity and underhandedness do not play well in front of mediators (or judges and juries for that matter).
In the next blog I will discuss how a mediator uses tactics to achieve a positive result.