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What Makes For an Effective Mediation in a Personal Injury Case?

Hopefully, in the last blog I established the wisdom of going to a mediation. This blog will address how I, as your attorney, believe the mediation should be approached. The mediation is done in a private office, not in a courtroom. It is nevertheless adversarial, although politely so. There can be more than ten people present. Thus, there may be several representatives for several parties. As much as I say it is an informal process– without the rules of evidence, without testimony, without a judge or jury– it starts to feel very important. I use that feeling to remind myself how important it is to prepare. That is why I say in the video blog, “there is no substitute for preparation, preparation, preparation.” The stakes are as high as in a courtroom because at the end of the day you are seeking full compensation for your injured client. I enjoy the opportunity to give my overview of the case at the outset of the mediation. I will never approach a mediation in a casual way. My presentation, consisting of approximately twenty minutes, will rely upon excerpts from depositions, medical records and, of course, demonstrative evidence. Such displays are there to give insight as to how the accident happened and to depict the injuries in a clear, if not dramatic, way.

At the end of the presentation, I want the defense, the attorneys and insurance companies for whom the lawyers work, to know that if this case were to go to trial, it would be ready and it would be strenuously argued. I do not tend to hold back in a mediation and there are strategic reasons to let it all out. The foremost reason is that this is your chance to show the other side, as well as the mediator, how strong a case you have. Sometimes, gaps in the other side’s case are not apparent or have not been pointed out during depositions, for example. This is the time to present a summation and to show that there have been contradictory theories put forth by the adversary. Some plaintiff’s lawyers may feel that they are revealing too much. I, on the other hand, would rather put my best foot forward and, hopefully, cause the other side to assess in a serious way if they have a defensible case.

As previously described, after the initial presentations, the mediator engages in “shuttle diplomacy.” This is to begin the process of exchanging numbers in an effort to come to a settlement figure. In reaching that settlement, it helps if the plaintiff knows what he or she can put in his pocket, after the payment of Medicare, private health, and workers compensation liens, for example. Often it is not possible to know the exact number but if that is a sticking point, the case need not settle the day of the mediation. However, the process may certainly lead to a settled case.

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