JAMS ADR Blog by Chris Poole
Mediating personal injury disputes is an art, not a science. At the core of a personal injury claim is an injured – or deceased – party, with loved ones and family members who are intimately involved in the case. All of these human factors weigh heavily on the mediation process.
What this means is that legal practitioners involved in personal injury mediation, both plaintiff and defense, must approach the matter in a different way than they would a business dispute. In essence, they must bring a level of perfection and professionalism to bear in order to best serve all involved.
The three keys to a successful personal injury mediation are: preparation, sharing, and communication.
Preparation is crucial for both sides and begins with the brief. For the defense, the brief must acknowledge the claimant’s pain and suffering. This can be done without damaging the defense or the case of an insurer. The brief may also, if handled sensitively, express opinions as to what a jury may do with issues such as comparative negligence, speculative damages or the obligation to mitigate loss.
The plaintiff’s brief is similarly crucial. It is the only time that the plaintiff’s side will have a chance to communicate directly to the defendants in an unfiltered manner. The brief should be carefully crafted and speak to both the defendant and their counsel. This can be done by acknowledging the risks of the case; demonstrating how these risks may be overcome; linking to a short dose of information to discovery documents attached to the brief; sharing snippets of expert’s analysis; and, where appropriate, providing an early submission of a day in the life video or overview.
For both sides, it is important to submit the briefs at least a week before the start of mediation. This will give all parties as well as the mediator the opportunity to read them and carry out a thorough assessment.
There should be no “gotcha” moments during a personal injury mediation. Both sides must share everything in their initial briefs to achieve a successful settlement.
For example, if an insurance carrier is involved, there is often a need for multiple decision-makers to weigh in to change reserves, where appropriate. If one side holds back and presents a surprise at mediation, there will be no vehicle available to move the case to a resolution during that session. On the other hand, by providing briefs with sufficient data to adequately express risk and other issues, this will get the attention of decision-makers on the other side. It will also ensure everyone is on the exact same page when meeting.
The day of mediation should not be the first time that opposing counsel speak to each other regarding the key issues in the case. There should be frank negotiations even before mediation is considered that address expectations and demands. In this way, parties go into mediation with a very good idea as to where the other side coming from.
Preparation, sharing and communication are the key to a successful settlement effort by all concerned. Without these components, the first mediation session will not be the last.