Occasionally, there are pre-suit mediations. But for purposes of this personal injury blog post, I am going to discuss the more typical mediation variety.
If you have an upcoming personal injury mediation, chances are that pre-litigation negotiations broke down and you have filed a personal-injury lawsuit. In Florida, mediations are required before an injury case can go to trial.
Usually, the defense attorney will suggest one or more mediators they deem acceptable. My first instinct, whenever a defense attorney suggests anything, is to question their motive. In this case, it is obvious they are suggesting mediators that they have used before with some perceived success. Most experienced mediators have reputations in the legal community; so unless the mediator is known to be too defense friendly or if they do not have significant experience handling personal injury cases (for example, simple car accident cases, with typical injuries, do not require as much technical knowledge as a complex defective products cases or a car accident case that involves traumatic brain injury), I may consider agreeing to one of the defense attorney’s suggestions; here’s why:
- the defense attorney is more likely to trust the advice given by a mediator they have used before. If I can combine this psychological advantage with the confidence that I will be able to illustrate my client’s fantastic personal injury case, I believe the mediator will be better equiped to move defense counsel into a compromise more advantageous to my client.
Next, I may send a position paper to the mediatior in advance of the mediation. This will outline the basic facts, our case’s advantages along with the other side’s shortcomings. If our case has some obvious shortcomings, I would address those as well to minimize its impact. There are case-specific facts (that may be positive or negative) that I may choose to leave out – depending on a multitute of reasons (e.g. whether I think the case has a reasonable chance of settling or as part of a larger litigation strategy).
I may also send a modified version of that same position paper to opposing counsel (any portions I instruct the mediator to keep confidential, must be kept confidential – i.e. will not be relayed to defense counsel). Here’s why:
- A few days or a few weeks prior to the mediation, defense counsel will try to estimate (give a range) of potential settlements to the insurance company that will ultimately pay any settlement agreed upon. The insurance company will then give the defense attorney the authority to settle the case for no more than x dollars. So, if the defense attorney fails to consider an angle that is advantageous to the plaintiff, their settlement authority may be set artificially low – thus dooming the mediation before it even starts.