In many ways, lawyers in personal injury cases should prepare for mediation in the same manner we prepare for trial, excluding, of course, witness preparation. If the case does not settle, you will already have some of your prep work done. The one thing I used to often forget is to properly prepare the client for the mediation.
First, you want to prepare your client for the process itself. Mediations are done a number of different ways, so if you have not mediated a claim with that mediator before, make sure you find out how that mediator conducts the mediation (you local trial lawyer listserv is usually the easiest way). The format of the mediation typically means little to the lawyer–no matter what the initial path is, negotiations typically unfold as they do, regardless of the format. But the client is going to feel a lot more comfortable and in control of the process if he/she understands the process.
Finally, sometimes defendants’ lawyers and the adjusters on the case will make a point that the client can answer. Sometimes, a good mediator will suggest that the client provide an oral answer to the issue the defendants think is a sticking point. Obviously, there is no one-size-fits-all answer as to whether to allow the client to address the defendants, but I think more often than not it helps.
First, it gives the adjuster/lawyer a reason to increase the offer because the client adequately addresses the concern. But the hidden upside is that it humanizes the client. Mediations are a very artificial process where the client, the subject of the case, is largely mute. This creates – for lack of a better phrase - a strange vibe that does not play to your client’s interests. When the client can look the defendants’ lawyer or adjuster in the eye, as clichéd as it may sound, the client begins to look like a human being instead of a medical record. In this sense, defense lawyers and adjusters are just like jurors in that they are far more willing to compensate a human who has suffered, or is suffering, than they are a stack of medical records.
Accordingly, the client should be prepared to talk about her case. This needs to be done before the mediation. If you ask for 15 minutes to prepare your client, some of the realism and the humanity is lost.
