Mediation

26 Jul 2007

by Attorney Bob Carroll

There is an increased use of mediation as a means of resolving personal injury claims. With each passing year, the mediation process becomes one of the most promising methods of arriving at an acceptable compromise settlement in an injury or wrongful death claim, especially in the claims that would be the most costly and risky to litigate to a jury verdict.

When it is successful, mediation effectively ends the claim or litigation without further costs; when it fails, the injured person simply proceeds to use the traditional procedures of litigation and jury trial without penalty. And, importantly, mediation is an amazingly cost-effective process that can save the injured person literally thousands of dollars in litigation expenses.

The attorneys of Perenich Carroll have successfully mediated hundreds of personal injury claims and feel strongly that today's injury lawyer must fully understand the process of mediation and attend to the three "P's" that make success at mediation likely-preparation, presentation, and participation.

So, what is this thing called mediation? At its heart, mediation is the effort of a middle person (called the mediator) to bring the injured victim and the wrongdoer together to seriously explore all reasonable possibilities of settlement. The mediator is a specially trained and experienced person, often certified in the field of mediation, who possesses unique skills and powers that can improve the climate for negotiations. The mediator is frequently an attorney who has had experience in the litigation and resolution of injury claims. He or she has generally developed a reputation for fairness and knowledge of community values and possesses specialized communications skills useful in negotiations.

The mediator is totally impartial and is paid equally by the parties for the time required in the mediation and preparation for it.

By statute or rule the mediator usually has certain obligations, powers and privileges. In a court-ordered mediation the mediator generally has the power to control who attends and the length of the mediation. Neither the mediator nor any of the participants can be compelled to later testify to anything that was said during the mediation by anyone. This assures that the mediation process is truly "off-the-record."

Also, the mediator is not permitted to reveal any confidential information revealed to him privately by any side. In essence, the mediator's mind becomes a slate upon which the facts, issues, positions, and values revealed by the participants are written, but it is a slate that only the mediator may read. Obviously, the mediator develops a much bigger picture of the situation at hand than any one participant could ever view. This gives the mediator a much better opportunity to assist the participants in arriving at a middle ground of compromise.

In order to increase the probabilities of reaching an acceptable compromise settlement at a mediation the attorneys of Perenich Carroll emphasize preparation, presentation, and participation. These concepts have been the foundation for a high success rate at mediations.

Preparation

Preparation involves both the careful and detailed work that is similar to the preparation for a civil jury trial but the education of the client in the process of mediation. Important records, photographs, statements, charts, diagrams, and other materials must be readily available for the mediation conference. Legal assistants must go through the checklist of steps to assure the mediation file is complete. The attorney must prepare himself to not only make his affirmative presentation but to deal with the issues and questions that may be raised by the other side.

The client who is about to attend a mediation conference needs special information and instructions. The client cannot intuitively understand what the mediation process is like and what is expected of him. A full explanation of the concept of mediation and its procedures is most helpful in the experience of Perenich Carroll. In addition, the client should be given information about the mediator and the other likely participants. An explanation of the presentation that will be made and the reasoning behind it is also helpful. This is especially true because there is a dramatic difference between a jury argument (which clients are likely to have seen on television) and the quieter atmosphere of the mediation process.

Clients also benefit from knowing how their attorney will assist them with advice and information during the negotiation process at the mediation. Normally, this would include the ability to calculate a net recovery sum from a settlement proposal. Obviously, all questions or concerns of the client regarding the upcoming mediation should also be addressed.

Probably the most important messages that the client should receive from the attorney before the mediation are the following:

1) come prepared to listen as well as talk;

2) come prepared to negotiate; and,

3) come prepared to participate in the process as guided by the mediator.

Presentation

The presentation of a claim for personal injuries at a mediation can take many avenues.

It is the responsibility of the claimant's attorney to select the one that is most appropriate for the particular case at its unique stage and that is likely to be the most effective given the particular viewing "audience." A seasoned insurance claims adjustor represented by a senior partner in the largest defense firm in town does not respond to the same presentation or approach as the 25 year old claims rookie might.

Bombastic statements are almost never appropriate in the presentation of a claim in mediation because there is not enough time in the day to clear the debris and get back to more civil discussions. Sincerity and openness are key ingredients that create a productive atmosphere at the start of the mediation process. Some recognition or validation of the positions taken by the defense is also helpful at times. After all, some of their points might play well eventually in front of a jury.

Brevity in the initial opening statement is also prudent. The time taken by all sides in making opening statements delays the start of the separate and private conferences that follow. The private, separate conferences between the mediator and each side are where the true work of the mediation is accomplished, not at the time of opening statements.

Participation

Participation is the last of the three "P's" that Perenich Carroll considers critical to the success of a mediation. If all participants really listened to each other's statements and positions and to the mediator, the success rate at mediations would improve above its current level. And, if all participants sincerely responded to the issues raised by the mediator and the other side, the success rate would likely approach 100%. Unfortunately, the insurance company representative only feigns participation and doles out pre-determined settlement proposals in some sort of program time intervals. And, same claimants arrive with the sort of intentions. Yet, it is still apparent that when clients of Perenich Carroll really become involved in the discussions and address the matters raised by the mediator compromise settlements seem to occur more often. Full participation by one side tends to improve the level of participation by the other side.

Summary

Mediation represents an excellent opportunity for the compromise settlement of a personal injury claim. It requires effort, however, if it is to be successful in any particular case or claim. The attorneys of Perenich Carroll make the effort before and during the mediation to maximize the likelihood of an outcome satisfactory to the injured victim.