In my last post I discussed the need for thorough preparation before going to mediation. In particular, I noted the need to prepare the opposition, which may have surprised some readers. Why, you might ask, should I prepare the opposition as well as myself? Why can’t they prepare their own case?
Sounds fair alright, but if you are the plaintiff you need to give the insurance carrier every reason that you can think of to put the highest possible value on your claim. Don’t count on them to find those reasons for themselves; they might be too busy thinking of reasons to do just the opposite.
Some injured parties and their counsel will come to a mediation with a “hide the ball” attitude. Rather than lay out all of their evidence, they prefer to keep their best points hidden so that they can surprise the other side at trial. This strategy is almost always wrong.
First, the vast majority of cases are settled, so there will not be a trial. Even more importantly though, insurance carriers and their counsel will do their internal evaluation of your case before the mediation and make a determination of what they are willing to pay in order to settle. You want them to be looking at your strong points when they arrive at that number.
None of us like surprises, except on our birthdays or other festive occasions. If you conceal your good evidence and then decide to reveal it later in order to support a higher settlement demand, you will only irritate the other side.
The mediation is the most important event in your case. The day of the mediation is the day when it should be resolved. Prepare thoroughly, lay all your cards on the table, and give the defense everything that they will need. Do it well before the mediation so that they will have time to take all of the facts into account.
MICHAEL P. CARBONE is a senior mediator who has also served as an arbitrator and court-appointed referee. His dispute resolution practice has been built over a period of more than 25 years and covers a wide range of fields. His exceptional combination of transactional and litigation experience enables him to handle complex litigation and other challenging cases.
Michael resolves business and commercial cases, real estate disputes, employment claims, construction claims and defect cases, estate and trust matters, insurance issues, legal malpractice, corporate and partnership disputes, and personal injury cases. In his capacity as a court-appointed referee he has undertaken a wide variety of responsibilities, including sales and appraisals of real property, and the adjudication of trust accounting and administration matters.
He is a member of numerous dispute resolution panels, including the National Panel of Arbitrators of the American Arbitration Association. He is also listed on the mediation and discovery facilitation panels of several Superior Courts.
He is a founder and past president of The Mediation Society, and a member of many other professional organizations, including the Academy of Court-Appointed Masters, the Dispute Resolution Section of the American Bar Association, and the Association of Business Trial Lawyers.
Michael is a frequent author and speaker on alternative dispute resolution issues. He publishes a monthly newsletter entitled "Resolving It" which provides timely advice on strategies for successful mediation and discusses current issues, such as reforming the commercial arbitration process and mediating e-discovery.