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Bradley: What to consider when preparing for mediation

May 3, 2017
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By Galen Bradley

Coming to the negotiating table can be stressful, not only for the parties but also for the lawyers involved. Here are some tips based on my experiences for what both sides can do to have a successful mediation.

Disconnect. I can’t tell you how frequently I walk into a room to find the parties and attorneys using their electronics. Mediation is a wonderful marketing opportunity; however, you actually have to talk with your clients or company representatives. On the plaintiff’s side, while your client might not have a million-dollar case, they might be a lifelong referral source. Avoid the temptation of using your electronics, even if the client is. Instead, use the time to review the case and to think of additional arguments to support your client’s position. During a half-day mediation, you’ll be surprised at the additional arguments you may be able to come up with to support your client’s case while you’re focused solely on that case. You’ll have done a superb job for your client, and your client will likely recognize and appreciate your efforts.

On the defense side, insurance representatives and corporate clients normally have been through the mediation process hundreds, if not thousands, of times. The first thing defendants usually do when they arrive is open a laptop to monitor other matters or stay up on emails during the mediation. Obviously, you don’t want to pester, especially if your client or company representative is using the down time to “stay connected”; however, if you don’t use that time to strengthen the relationship with your client or representative, you’re missing a golden opportunity.

Avoid the last-minute submission. Mediators routinely receive submissions the morning of mediation or the evening prior. We understand how taxing litigators’ schedules are, and you’ve worked hard on the submission, so make sure to give your mediator ample opportunity to review and consider your materials in advance. The earlier the submission, the more informed the mediator will be, which will save time and expense of educating the mediator the day of mediation. Moreover, last-minute work product is usually not your best advocacy.

Understand liens and paybacks beforehand. Not only is it critical that liens be understood before mediation begins, but it’s also ideal to have communicated with lienholders before mediation. Lienholders sometimes participate in mediation, either in person or by telephone, which can be beneficial. However, if you’ve not communicated beforehand, at a minimum, have the lienholder’s contact information available so that contact can be made during the mediation, as this will hopefully prevent the “keep the offer on the table” scenario that we often find ourselves in while the parties “work on the liens.” I am not a strong proponent of “leaving the offer on the table.” Cases have a tendency to fall off parties’ radar once mediation has concluded, and buyer’s remorse is a real possibility should a complete resolution not be reached.

A picture is worth a thousand words. Instead of describing the scene of an accident, extent of damage (or lack thereof) to your client’s vehicle, or the hardware remaining in your client’s body —show us. Attach photos of an incident scene, vehicle or a radiographic study. The part of the brain used to process images is much larger than the part that processes words. Images are easily remembered and normally much more compelling, which is why we use them in court. Mediation can be the first test of that presentation.

If there’s something uncommon or sensitive, give a heads up. Include it in your submission or at mediation privately. We’ve not had the benefit of participating in the case for the past several years and perhaps emotions are boiling over between the litigants, or there is information you would like the mediator to know but it’s sensitive. Behind-the-scenes details can be invaluable in reaching a resolution. That said, use your right to confidentiality thoughtfully, as issues that concern you might give the mediator needed leverage to get the job done.

Save paper. Don’t attach entire deposition transcripts to your submission. We understand you have clients to answer to and you want your submission to not only look professional but to be persuasive as well. Having mediated more than 3,000 cases in the past 15 years, I’ve rarely read an entire deposition attached to a submission. Attach only necessary pages, but if you feel compelled to attach the entire deposition, refer to page and line numbers in the narrative part of your submission as you would for the court in a summary judgment designation.

Only attach critical medical records. If you attach voluminous medical records, be particular (highlighting is wonderful) when referring to the records. Attaching full sets of medical records from various providers is similar to attaching an entire deposition transcript. Most mediators are not going to read an entire set of medical records from a provider. Be specific in terms of what is actually important for your case.

Consider sending itemized damages to opposing counsel beforehand. More times than not, the first hurdle encountered at mediation is that the parties’ damage amounts don’t match. This can be a source of frustration (and embarrassment) for both sides when the case has been pending for many years and the plaintiff’s alleged damages are significantly different than the damages known to the defendant. Send a letter to your opponent 30 days or more before the mediation attaching your damage itemization, asking that they compare it to theirs so that the parties have an opportunity to discuss the differences in the damage calculations and obtain any additional necessary information or documents before mediation. Attorneys that make this a common practice normally shorten the time of their mediations, avoid unnecessary frustration and appear to have a much better handle on the case in front of their clients.•

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Galen A. Bradley is a senior partner in the Merrillville office of Kightlinger & Gray LLP. He has practiced law for more than 20 years and has mediated civil cases for 15 years across Indiana. The opinions expressed are those of the author.

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