Vol. 80, No. 8, August 2007
ing a Personal Injury Plaintiff for Mediation
Mediation has become a part of the personal injury litigation landscape. Frequently court ordered, and always court endorsed, mediation often is the stage when personal injury lawsuits are settled. Attorneys on both sides of the docket recognize the value of mediating these cases. For plaintiffs, however, the utility of mediation can be a mystery. With much public perception of litigation based on television dramas, it is no surprise that mediation largely is unknown to plaintiffs.
While personal injury attorneys all take slightly different approaches to preparing a case for mediation, this article focuses on the key element of any successful mediation preparation - readying the plaintiff. A masterfully written mediation submission, thorough calculation of damages, and an immaculate case file can all be rendered useless if a plaintiff arrives at mediation afraid, defensive, or uninformed. A plaintiff who has been prepped for mediation will be more likely to settle her case and is more likely to be a satisfied client of the attorney. Even if a case does not settle at mediation, a plaintiff who goes through the process becomes better informed, and the remainder of the litigation thereby is made that much easier for the client and her attorney.
Discourage litigation. Persuade your neighbors to compromise whenever you can. As a peacemaker the lawyer has superior opportunity of being a good man. There will still be business enough.
- Abraham Lincoln
Obviously, every personal injury case and every plaintiff are different. Mediation preparation should be tailored to address the specific needs of each case and client. Generally speaking, however, there are five main areas of mediation preparation that an attorney should address with all personal injury plaintiffs well in advance of the mediation.
Explain Why the Case is Being Mediated
Mediation has become so common that it often is simply a routine aspect of litigation. That does not mean a plaintiff will have any idea that mediation is likely in the offing. There are innumerable opportune times for an attorney to first discuss mediation with a client (for example, during the initial interview, when the lawsuit is filed, or when mediation is ordered or requested). The client should learn that mediation is ubiquitous and is an important part of the litigation process.
If appropriate, the simplest reason to give for why a case is being mediated is that the court has ordered it to be mediated. Judicial economy is one reason for court-ordered mediation. Judges also know that mediation works, and that many personal injury cases can be settled short of trial.
Jason J. Knutson, U.W. 2000, is a partner at Axley Brynelson LLP, Madison, focusing on personal injury, insurance litigation, and medical malpractice defense. He also is a legal research and writing instructor at the U.W. Law School and chair of the Dane County Bar Association Case Mediation Program’s Long Range Planning Committee.
Regardless of how the mediation process is initiated, the personal injury client should understand that the case is being mediated in an effort to reach an acceptable settlement, to preview some of the likely issues that will arise at trial, and to determine with some clarity how disparately the parties view the case. In other words, the case is being mediated so the plaintiff can see what is being fought over. This also is a good time to make sure the client understands that mediation is not the same as binding arbitration.
Explain the Benefits of Mediation
Occasionally, the plaintiff will view mediation as a superfluous step in the already tedious chain of litigation events. Plaintiffs also may perceive mediation as something that only assists the defendant because it cheats the plaintiff of a "day in court." Almost any apprehension a plaintiff may have about participating in mediation can be ameliorated with a concise discussion of mediation's benefits.
1) Mediation is a less expensive way than trial to resolve a lawsuit. The specific ways in which mediation affects a personal injury settlement are addressed more fully below. When plaintiffs understand that mediation likely will result in a higher net settlement for them, after accounting for payments to subrogated parties, expert witness fees, and the time needed for ongoing discovery and trial appearances, many of the objections to mediation melt away. This is especially true when the plaintiff considers that her time is valuable and that the demands of ongoing discovery can have a significant impact on the plaintiff's schedule.
2) Mediation offers a rapid conclusion to the case. By the time a personal injury case is mediated, it can be years old. Plaintiffs become frustrated, fatigued, and disenchanted after the journey through discovery and motions. A settlement at mediation brings a sense of closure for the plaintiff, who can move on with life and take the focus off litigation. Moreover, once a case has been settled at mediation, there is virtually no risk of an appeal. When a plaintiff is told that a trial result may not in fact be the end of the litigation process should a party choose to appeal, mediation becomes that much more attractive.
3) Mediation offers the plaintiff some degree of control and predictability. The litigation process is amazingly bereft of client involvement. At mediation, the plaintiff is an active participant and has real power in effecting an acceptable outcome. In fact, the plaintiff's power at mediation arguably is greater than at trial, where the plaintiff will be subjected to cross-examination and judged by a panel of complete strangers whose verdict is impossible to predict. The plaintiff also retains the power not to settle the lawsuit at mediation. A plaintiff empowered with the knowledge that she is the one terminating the lawsuit is likely to view a mediation outcome more favorably than an outcome decided by a jury.
Explain What Will Happen at the Mediation
A plaintiff needs to know which people will be attending the mediation sessions, why they will be there, and anything important about their personalities. Typically, mediation will have the following cast of characters, who can be introduced to the plaintiff like this:
Mediator. Our mediator is attorney Al Newman. He spends most of his practice as a defense attorney, and so he has credibility with the insurance company. He is impartial in this case. His job is just to help get the case settled and give his feedback to the parties if asked. He tends to focus on the damages in a case, and so we can expect to spend some time talking about your lost income. He typically starts the mediation by introducing all the parties and talking about the process. Then he takes the other side into a separate conference room and returns to talk to us in more detail. He will ask you some questions about the accident and how you are doing now. He is a very nice guy, and since everything you say to him is confidential, you should be open and honest.
Insurance Company Attorney. You met the insurance company attorney when she took your deposition. She will be with us at the start of the mediation, but then she will be in a different room. She will probably have her case file with her and will be in contact with her client, the insurance company, by phone. She will have analyzed her case and made a recommendation to her client about the benefits of mediating and settling. She tends to go through mediation very quickly, so we should expect to be talking about numbers early on. Do not mistake her pace for not being interested in the process; she just likes to keep things moving.
Insurance Company Representative. Sometimes a representative from the insurance company will attend the mediation. The insurance company representative probably will be the person making the final decision on how much to pay to try and settle the case. He has handled your file for a few years now and so knows the details about the accident and your injuries. We probably will not have any interaction with him.
Defendant. On rare occasions, the defendant will attend mediation. This usually is just so the mediator has a chance to evaluate what kind of impression the defendant will make on a jury, or when there are subtle questions about how the accident happened. We are unlikely to have any interaction with the defendant.
Subrogated Party. A representative from your health insurance company may be at the mediation. He will be in a different conference room and will be monitoring how settlement talks are progressing. Remember that his goal is have the health insurance company be reimbursed for the medical bills paid from the settlement.
Plaintiff. You will need to attend the mediation in person. Plan on it taking several hours, and so make any arrangements necessary for work and childcare.
Plaintiff's Attorney. I will be with you for the entire mediation. If you have any questions at all during the process, we will have the time to stop and talk through them before moving forward.
Potential Pitfalls for Plaintiffs
Once the plaintiff knows the identities and roles of persons who will be at the mediation, more details about the process will make sense. For instance, it is very important that the plaintiff understand that the end result of mediation is that everyone leaves unhappy. The very nature of mediation is compromise, which often equates with some measure of defeat. It is natural for a plaintiff to feel a sense of let-down when a case is settled. By warning the plaintiff of that possibility, she will be less likely to confuse those feelings with doubt about whether the settlement was a fair one.
Another potential pitfall for a plaintiff at mediation is becoming defensive during the process and losing interest in reaching a settlement. The plaintiff needs to be told before the mediation that she is going to hear the challenges of her case discussed at length. A mediator usually will spend time with each party discussing those challenges. The plaintiff should be reminded that when the mediator is in the other room talking with the defendant, the defendant is hearing about the negatives in its case as well. This is also a good time to remind the plaintiff that even though this is her case, she should not take personally much of what is said at mediation. A plaintiff needs to be reminded that challenges of winning a case at trial sometimes have little to do with the plaintiff, and that judgments about the case are not typically judgments about the plaintiff personally. A plaintiff needs to understand that cases are won and lost based on the facts and not always on what the plaintiff believes is fair.
The underlying theme in all of this is that the plaintiff should be patient and calm. Mediation can be a long, tedious, tiresome, irksome, and unnerving process. A plaintiff prepared for those types of frustrations very often will treat them as surmountable challenges and rise to the occasion. An unprepared plaintiff is likely to feel picked on at mediation and to distrust the mediator and the process generally.
Give the Plaintiff Ways to Prepare for the Mediation
For the plaintiff, mediation is a big deal. Mediation sometimes is a substitute for the day in court that many plaintiffs believe is the only acceptable conclusion to their lawsuit. In the days and weeks leading up to mediation, the plaintiff will be concentrating more on her case than usual and will be anxious about what is going to happen. An effective way for the plaintiff to control that stress is by using it to prepare for the mediation.
One simple way for a plaintiff to get ready for the mediation is to think of a handful of anecdotes that she can share with the mediator about ways her injuries have changed her life. This not only allows the plaintiff to tell her story but also provides the mediator with valuable information to share with the defense in an effort to distinguish this particular case from any other. Whether it is a vacation plan that had to be cancelled, or not being able to play with a grandchild, thinking of specific instances of hardships caused by accident injuries provides a useful way for plaintiffs to participate in the mediation.
The plaintiff also can prepare a mediation survival kit. Mediations can take all day, and different plaintiffs will have different ways of easing stress throughout the day. Invite the plaintiff to bring whatever she needs to make the day as comfortable as possible. Knitting, snacks, a cell phone, or a book may be all that a plaintiff needs for a dramatically improved mood on the day of mediation. Letting the plaintiff know that she can equip herself as needed for mediation not only further empowers her but also will provide her with some items of comfort in an otherwise foreign environment.
Explain the Numbers
At the end of the day, a personal injury mediation is about numbers - specifically, dollar amounts. It is easy for a plaintiff to get lost in the welter of numbers as a case nears settlement - gross amount, net amount, subrogated payments, costs, fees, and unpaid bills, to name just a few. The first task for the plaintiff's attorney is to explain that the most important number for the plaintiff to watch throughout the day is the net amount the plaintiff will receive if the case is settled. It is an unhappy plaintiff who has been watching the gross settlement amount be volleyed back and forth, only to realize this number far exceeds the amount she will receive from the proceeds.
There are dozens of factors that affect the numbers at mediation. One of the most common factors is the total amount of the medical bills and lost wages incurred by the plaintiff. Those numbers should be verified with the plaintiff so there is no confusion about which bills have been paid and who has paid them.
Mediator and attorney Michael Riley notes that "a critical part of preparing the client for mediation is making sure the expectations regarding case value are realistic." If case value has not already been discussed with the plaintiff, it should be discussed at the mediation preparation meeting. If the plaintiff believes her case is worth $100,000, when a more realistic valuation is in the $30,000 range, she will need to be steeled to hear amounts well below what she was expecting. The plaintiff's attorney is best situated to talk to the plaintiff about case value. The attorney's assessment can be buttressed by the mediator's input at mediation, but the client should not walk into mediation without fair warning of likely case value.
If health insurance expenses have been paid by certain entities, the plaintiff needs to know that those entities have a right to subrogation and reimbursement from the settlement proceeds. A plaintiff may be confused when told that after years of paying health insurance premiums, she must now pay back the health insurance company for bills it paid on her behalf. It clearly is better to have this discussion in the weeks before mediation rather than while trying to hammer out a settlement. The concept of "made whole" and the ability to negotiate with subrogated parties also should be discussed with the plaintiff, along with how those discussions may occur at the mediation. Madison lawyer and mediator Michael Crooks agrees. "A good plaintiff's lawyer explains to the plaintiff that he or she is obligated to pay back the health insurers and subrogated carriers, and sets the stage for negotiating a favorable deal by contacting the health insurers prior to the mediation."
Almost as shocking to a plaintiff as the concept of subrogation rights is the incredible expense involved in litigating a lawsuit through trial. It is always useful to show the plaintiff a side-by-side comparison of settlement amounts versus those same amounts at trial. In almost every case, a plaintiff will obtain a larger net settlement at mediation than at trial - even if the verdict amount is somewhat higher than the gross settlement amount. Figure 1: Settlement Versus Trial, illustrates how a mediated settlement often is more beneficial for a plaintiff than a verdict at trial (at least from a financial standpoint).
Once the plaintiff has some understanding of all the numbers that will be involved, she can be braced for another potential shock - the first offer from the insurance company. Plaintiffs often are discouraged by the initial settlement offer made at mediation. That discouragement can easily lead the plaintiff to entrench her position or simply give up on the mediation altogether. The plaintiff should be warned to expect that the first offer at the start of the mediation will seem unreasonably low. Remind the plaintiff not to get frustrated and to keep an open mind as negotiations proceed.
Finally, some plaintiffs will expect that if the case settles at mediation, they will be leaving with a settlement check. In fact, it is sometimes several weeks before a plaintiff receives payment following mediation. The defendant has to order a check, issue the check, deliver the check, obtain a signed release, and circulate a stipulation and order for dismissal; the check must sit in the plaintiff's attorney's trust account; the subrogated parties must be satisfied; and only then is the plaintiff paid.
The time spent preparing the plaintiff for mediation is as important as the time spent at mediation. Thorough preparation not only helps equip the plaintiff for what is to come but enables the attorney to anticipate potential obstacles in the process and allows mediation to serves its purpose as an efficient tool for resolution.