Advocacy in Mediation: How to Gear Your Discovery Plan and Prepare Your Client; Techniques Enhancing Settlement

Many attorneys wait until the day before the mediation to provide mediation briefs to mediators. There are some mediators who no longer request briefs. This is based upon the belief that writing the brief can cause each party to become more polarized in their positions.  When working as an advocate for my  clients I prefer to view the mediation brief writing process as an opportunity to not only educate opposing counsel and their clients, but also myself and my client.  A thorough briefing of the case forces the parties to thoroughly examine the strengths and weaknesses of their positions which creates the best environment for settlement.

Plaintiff’s Perspective

Preparing your client for the evolution of their claim begins the minute you begin the initial consultation.

Before the Mediation:

  1. Cases settle based upon the net to the plaintiff:
    a.  Know your numbers: Calculate your Hanif/Howell medical specials, get final lien numbers from Medical, Medicare, and other Health Insurance Carriers. Have your paralegal call all medical providers to procure final balances. If you cannot get a final number, try to calculate an estimated lien number. If you have prepared a spread sheet, this should be relatively easy to do.b.  Know your current costs, project your future costs to trial
  2. Know your client; develop a relationship with your client long before a settlement demand is made and/or a Complaint is filed. Clients do not automatically trust their attorneys.  Attorneys need to earn that trust by frequent attorney/client phone consultations where you can actively listen. During your interactions with your client before the case is presented, do not cut them off when they are sharing about their personal lives as this is an excellent opportunity to get to know who they are. Remember your client IS your case. It IS all about them!
  3. Remember that the mediation is often the first time that the claims professional has to first hand evaluate not only your client, but your relationship with your client. An attorney and client who present a united, strong relationship based upon mutual respect and trust will make an effective presentation not only at the mediation but also for trial. Claims professionals notice this and this affects their evaluation of the plaintiff’s claim and their clients’ risks at trial.
  4. Know the defense’s policy limits. If this is a pre-suit mediation, request that the carrier procure written authorization from their insured to disclose. If not, run an MEA search.
  5. Make sure you have all of the defendants at the negotiation table.  You do not want to run into the “empty chair” argument.
  6. Meet with your client in person before the mediation (preferably do not wait until just before the session) and explain the process. As soon as they have stabilized and you can prepare a settlement demand, share your evaluation of their claim with them in a compassionate and firm manner.
  7. If you anticipate a client control issue, confer with the mediator privately ahead of time and/or request a pre-mediation conference before the beginning of the process. This can be accomplished at the outset of the session or a few days beforehand.
  8. Have your first round of written discovery ready to propound on the defense: form and special interrogatories, demand for production of documents. Prepare it when preparing the Complaint and serve it on the defense as soon as you receive their responsive pleading.  Meet and confer with opposing counsel regarding any incomplete or evasive responses early and agree on a discovery plan geared to knowing everything the parties deem relevant to a thorough evaluation of the claim BEFORE mediation.  If there are experts that should be deposed before the mediation consider completing them before the commencement of expert discovery which often is too close to trial and after extensive resources have been spent which may further polarize the parties.
  9. Prepare your brief early, providing the carrier with each and every basis for your claim. Attach important documents as Exhibits and provide it to defense counsel at least 30 days before the session with an extra copy for their client. The larger the claim, the more time they will need to get authority to bring money to the table which is sufficient to resolve the matter.

Defense Perspective

  1. Get authority from your client to propound your first round of written discovery: form and special interrogatories and demand for production of documents with your responsive pleading.
  2. Make sure to get subpoenas out as soon as you receive the responses and to meet and confer with plaintiff’s counsel regarding any incomplete or evasive responses.
  3. Schedule the plaintiff’s deposition and thoroughly report your impressions to the carrier regarding their credibility and jury appeal which will likely affect discretionary areas of damages such as general damages.
  4. Consider getting the IME (actual or paper) before the mediation if nature and extent of damages and/or medical causation are driving issues.
  5. Maintain an open dialogue with plaintiff’s attorney to ensure that you are not hit with any surprises at the session.
  6. Encourage early submission of the demand brochure/mediation statement to enable you to get it to your client to procure adequate authority to resolve at the mediation session.
  7. In general:   get as much information from the plaintiff’s attorney with your case analysis to the carrier with sufficient time to get the case to the adjuster(s), committee(s) who will provide you with adequate settlement authority.
  8. Continuously advise the carrier regarding all developments affecting your evaluation as these developments occur so as to enable them adequate opportunity to evaluate the claim.
  9. Encourage a real live adjuster with full settlement authority to attend the mediation. This not only ensures that the person with the funds to resolve the matter is fully preset, but also helps the plaintiff and their counsel  feel respected by showing them that your client takes the claim seriously enough to travel to the mediation session.  Should this prove impossible, ensure that the person with the most authority will remain available by phone for the entire duration of the mediation session. Often these adjusters are out of state and in another time zone, make sure that regardless of time zone, they remain available for not only discussions with you but also with the mediator.  If you will have an adjuster attending by phone, call plaintiff’s counsel as a courtesy and let them know well in advance, advise who will be attending by phone, their position within the company and any other vital information that will assure plaintiff’s counsel that the carrier will fully participate in the process.  This avoids polarization at the outset of the session.

Both Parties

  1. If you have a difficult dynamic with your client that might need mediator intervention, contact the mediator beforehand; most mediators provide pre-mediation telephone conferences and/or in person sessions.
  2. Utilize the pre-mediation opportunity to communicate via phone with the mediator to discuss the case sensitivities that you do not feel comfortable including in a shared brief and to jump start the process.
  3. Continue to exchange new and useful information between one another going into the session. Surprises at mediation often stall or halt the negotiation process.

At the Mediation….and beyond.

  1. Be Patient
  2. Don’t be discouraged or intimidated by the first exchange of numbers.
  3. Consider open session before breaking up into private caucusing. The meet and greet to sign the confidentiality agreement is important to humanize the process even if there are no formal presentations of the parties’ positions.
  4. Do not read too much into who goes first in the negotiations and who the mediator meets with longer; there are a variety of reasons why this may prove necessary.
  5. Remember that your client will continuously be watched. For personal injury plaintiffs this is incredibly important.
  6. Defense counsel should bring a prepared Release on their laptop which can be readily signed at the session.
  7. Plaintiff’s counsel – know your tax id and have a prepared W-9.
  8. Bring any and all documentation from the file that will prove important for the mediator and the parties to review.
  9. Remain respectful; avoid stridently expressing your position in open caucus. Keep the tone calm and respectful with an attitude of openness and a willingness to listen.
  10. If the matter reaches impasse, remain respectful and calm. Often mediation sessions provide the impetus; catalyst for the settlement environment which then results in settlement at a later date once the additional information is procured and exchanged. Maintaining cordial and collegial relationship with opposing counsel is key to maintaining this collaborative environment.  If the matter does not settle and proceeds to trial, a collaborative environment beginning with the mediation process provides the civility necessary for a full and fair trial for all parties.

About Marie Maiolo Muchow

Marie is currently the sole proprietor of the Law Offices of Marie Maiolo Muchow. In practice since 1989, where she began her career as an insurance defense litigator in Florida, and serving as a mediator for hundreds of claims since 2003, Marie knows how insurance companies operate, evaluate, and defend claims. Licensed in California since 1996, Marie proudly represents injured victims in the areas of personal injury and insurance litigation. Raised in San Juan, Puerto Rico, Marie speaks Spanish and provides consultations in Spanish without the need for an interpreter.