Outline of a lawsuit – Part 7- The Mechanics of Mediation

Once you have entered the mediation, the dynamics of your case turns on the strength of the evidence that you have presented to the mediator.  Police reports taken at the scene of an accident, Ambulance Call Reports that quote your client regarding their injuries, Triage Nurse and Doctor Notes that reflect the initial complaints of injuries – these items are used to re-create the day in which your client suffered acute injuries.  The evidence taken from the day of an accident will highlight the event and allow the mediator to understand how the accident (and related injuries) unfolded.

It is a narrative that you, as an attorney, should portray in the most vivid way.  Photos taken at the scene and visible injuries are important to illustrate the pain the your client endured.  As they say, a picture tells a thousand words.

You must present the evidence in an manner that is most easily digested by the mediator.  If possible, be prepared to describe the accident and your client’s injuries in 2 minutes or less.  This gets the ball rolling and towards a realistic dollar amount.

Generally, the plaintiff and defense attorney are separated and the mediator will ask each of them about the details of the accident and injuries.  If you can emphasize the injuries in 2 minutes or less AND present a demand amount, this will tip the scales in your favor with an mediator.  You need to start out of the gate with a dashing lead.  A mediator is only human and you want to influence their thought processes to the extent that they BELIEVE in your case and want to help YOU.

A demand amount should be neither extraordinarily high, nor woefully low.  The amount should reflect your ability to assess cases.  It is best to show the mediator that you are experienced, not naive or greedy.  Starting at a number that reflects the pain and suffering that your client endured, plus the economic loss that they suffered will be a good beginning point.  The best way to describe how you calculate a demand is to start out thinking like a plaintiff’s lawyer and increase that number to reflect a generous jury in a good day.

Plaintiff and defendant are separated numerous times and each time there is generally a increase in an offer and a reduction in a demand.  If you intend to keep your number high (because the facts of the case warrants it) you need to lower your demand in small increments.  This sends a message that you are reluctant to take a number that equals a huge compromise.

If you have a case with liability issues, you may want to discount that big number in your head in order to facilitate a settlement.  Taking a specious liability case can result in a disaster, especially in a county that uses the system of bifurcated trials.  The process of tweaking your demand will make itself apparent once you are in the midst of the mediation.

Clients should be apprised of the status of the mediation as  they wait in the waiting area.  It is not recommended (nor usually permitted) to have your client present during the mediation.  The legal issues will not only confuse the client, but may destroy the entire mediation process.

In the end, your client makes the ultimate decision as to accept or reject the offers made to them.  The mediator is generally useful in explaining how the parties arrived at a dollar amount.  The mediator will explain the positive and negative points about your client’s case.

At the conclusion of the mediation, the mediator will memorialize the agreement in a stipulation between the parties.  The client is required to sign it, as well as all attorneys and mediator.  The agreement sets forth the terms of the agreement which usually includes a stipulation to prepare a Release and Stipulation of Discontinuance (if the lawsuit has already been commenced).

Overall, mediation is a great tool to achieve resolution of an accident case.  It is the Plan B of my firm.  if the Plan B does not work, then the next step is to start a lawsuit and permit the facts to be decided by a jury or judge.  The next blog will discuss how to start a lawsuit.

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