ALTERNATIVE | Gay & Epstein Personal Injury - Make it Count By Terrie Gay, Esq. & Joseph Epstein, Esq.

I. Introduction • The mediator’s knowledge of the venue, nce upon a time, insurance companies authorized claim • The mediator’s gender (client may be more Oadjusters to evaluate and negotiate most bodily injury comfortable with one over the other), claims without anyone looking over their shoulders. Any • Your familiarity with the mediator and number of plaintiff and attorneys may have fond • The mediator’s availability. memories of those days! But, in today’s world, whether the case is valu ed at $10,000 or $100,000, many adjusters At times, you will choose a mediator that might be your have little to no personal authority with which to second or third choice, in order to secure agreement among resolve claims. In fact, companies now require insurance the parties and get a timely mediation date scheduled. There - adjusters to adhere to protracted evaluation processes before fore, both and the adjusters should maintain a list they make any settlement offers at all. It should come as no of acceptable mediators. surprise that these evaluation “processes” are the same for cases scheduled for mediation . But, by taking a practi cal, III. Due Diligence down-to-business approach that includes working with the You have a mediator and a date for mediation. What is adjuster, both sides can maximize the outcome of their next? Establishing a timeline is your next action; creating a clients’ mediation experience. One thing is certain, whether trigger or series of triggers that prompts you to begin pre - you represent the plaintiff or the defendant, mediation is not paring for mediation between 60-90 days before the event. possible without the adjuster. So, with that in mind, what At this interval, plaintiff’s counsel should begin to review can you do to make mediation count ? the case to make sure all relevant medical, causation and wage documentation have been secured that will support II. Setting the Stage the client’s position on . For example, if a narra - Once the parties have agreed to mediate, they must select tive report has been promised but not yet delivered to a mediator and a date for mediation that is reasonably far out. opposing counsel, then get the document(s). Do not delay. This can be time-consuming because the attorneys, the plain - Plaintiff’s counsel should also be checking into lien tiff and the insurance adjuster must all agree on a mediator man agement. If medical providers have filed liens that the and then find a date for mediation that works for every - plaintiff needs to address before mediation, counsel should one involved. start having exploratory conversations with those providers All parties want a mediator that will get the case settled. now. It is important to know before mediation which pro - All participants want a mediator who will listen carefully to viders are willing to discount their bills and by how much. each side, discuss the strengths and weaknesses with each If providers are willing to accept an amount predi cated on party and encourage compromise when it makes sense to do a sliding scale, e.g. based on how much the defense offers, so. All parties want a “neutral” who is known for “not taking arrange to have those providers available by phone on the sides” or simply “carrying money.” date of mediation. Alter natively, retain a lien reduction company to handle this for you. Be ready. Factors that may influence your selection of a mediator are: • The size and type of case (soft tissue vs. catastro- Defense counsel should follow the same basic timeline. phic injuries), Do not wait to the last minute to review your file. Start preparing for mediation 60 - 90 days before mediation. If • The mediator’s knowledge of the type of case you find you are missing critical docu ments, contact (TBI vs. whiplash ),

30 October/November 2014 Talk Colorado Trial Association Gay & Epstein | ALTERNATIVE DISPuTE RESOLuTION opposing counsel and ask for them 7. Have you exchanged and emailed case settled within the author ity that the now. Do not delay. As you re ceive “non-confidential” mediation company has placed on the claim file. documents, make sure you provide statements to the other side and For the adjuster to secure his/her them to your adjuster as quickly as the mediator? o BEST money on the file, you must pro - possible. 8. Have counsel prepared their vide all relevant documents support ing The adjuster assigned to your case respec tive clients for mediation? o the plaintiff’s damages. Not providing will submit the claim for settlement a. Has plaintiff counsel obtained all records and bills in advance of medi- authority once you have provided all informed input from the ation invites mediation failure. It is the information supporting the damages plaintiff? o not any better to provide a partial set of claims. In many companies, the adjuster b. Has the adjuster evaluated the records before mediation, and the rest must request settlement authority up to case and obtained authority? o on the day of mediation. This is called as much as two to three weeks before “data dumping” because you are dump - 9. Have counsel alerted the medi ator mediation to ensure the file is back ing records (data) on the adjuster at the to any special circumstances? o with authority in time for the last minute - at mediation - that the ad - settlement conference. This is the 10. Have you filed required motions juster has not used in evaluating the case . “process” with various companies. It is well in advance of mediation? o Data dumping often leads to failure be - what it is, and you need to allow time cause the evaluation process with many for it. Remember, the larger the claim V. Remember your Clients insurance companies cannot accommo - the more time required for evaluation. Preparing for mediation is about more date spur-of-the-moment changes to a than securing documents and ticking case assessment. When you “data IV. Use a Checklist items off a checklist. It is very importa nt dump,” you rarely enhance your client’s Most of us work more efficiently to remember the clients. Clients are position and you most certainly will when we use checklists. As a individuals who usually are not lawyers not get the adjuster’s BEST money. supplement to the above timeline, or employed by the insurance industry. consider using this pre-mediation They may be apprehensive or afraid of VII. Mediation Statements checklist to guide you as you prepare the mediation process. Most clients have I am the mediator. Think of me as for mediation. never been involved in mediation before the “man behind the curtain” whose and they do not know what to expect. job is to secure a mutually acceptable Pre-mediation Checklist 1 Therefore, it is vital that counsel educate settlement of the case. As the 1. Have you taken the necessary their clients about the process; let them mediator, I have what may appear to be depositions? o know ahead of time what will happen. two contradictory objectives: Tell them about their role at mediation. 2. Have you exchanged the neces s ary • How can I help the plaintiff get the expert and medical reports? o Insureds (defendants) will often call adjuster’s BEST offer? 3. Have you provided the necessary their adjusters for information and re - • How can I help defense counsel medical and other economic assurance about the mediation process so and the adjuster settle the matter specials? o its imperative the adjuster and defense for the authority on the file? 4. Have you arranged to have all counsel work together to stay in sync In truth, the “value” of most cases necessary parties at/or available and deliver the same messages. will frequently overlap between the for mediation? o VI. Mediation Goal parties. More often than not, the 5. Have you exchanged pre-mediation adjuster’s BEST offer is within the demands and offers? o All parties to mediation have the same plaintiff’s settlement range. Still, to 6. Have you put Medicare and goal, right? All parties want mediation help your mediator advocate for both Medi caid on notice and received that produces a settlement or resolution. sides, counsel should submit pre- a “con ditional payment” letter? Plaintiff and counsel want to persuade mediation statements at least a week Have other liens reduced or re - th e insurance adjuster to offer his/her ahead of the scheduled date and use leased their claims, or will lien BEST money at mediation . Defense these statements as tools of persuasion holders be available at mediation? o counsel and the adjuster want to get the to advance their case.

Colorado Trial Lawyers Association Trial Talk October/November 2014 31 ALTERNATIVE DISPuTE RESOLuTION | Gay & Epstein

What should be included in a good shared with the other side, such as IME Prepare and submit sound mediation statement? To start with, mediators reports or surveillance. statements and do not hesitate to talk want to know what you think about to the mediator about any “unwritten” As mentioned above, your statements your case. Tell mediators your strengths issues with your client or your case. By can be more than just a recitation of and weaknesses as they relate to liabil - being proactive and creative, you will basic facts, figures and timelines. If ity, causation and damages. For instance, obtain a better mediation result . LLL truth be told, mediators expect your tell us whether the defense disputes statements to include specific words ©Terrie L. Gay and Joe M. Epstein, liability. If the case is in suit and the designed to persuade them toward 8/9/14, all rights reserved defendant has not admitted , your side of the case. send the report, photographs of Terrie Gay is a former claims manager the vehicle and any additional exhibits Think about this ! When the parties and staff counsel for Allstate. “Practice” that will be helpful in discussing the submit statements, both sides have with hundreds of cases has allowed for the comparative fault issue. immediately created two opportunit ies development of a systematic approach to work with the mediator before the for negotiating cases to settlement. She The same goes for causation and scheduled mediation date. First, by focuses her mediation practice on personal damages. If there are causation ques- providing a statement, each side has a tions, summarize your related injury and insurance bad faith cases. chance to “position” their case strate - to causation. Provide mediators with a A mediator with Conflict Resolution Serv - gically before meeting in formal session. summary of damages that are related ices, Inc. (CRS), she can be reached at Secondly, after the mediator has received to the case. Attach all key reports, re - 303-355-2314 or [email protected] m and reviewed all statements, he or she cords or opinion letters that are helpful. may call you or you may call the medi - Joe Epstein is an internationally rec - Tell your mediator if there have been ator. This is an opening for you to tell ognized mediator. He has published any pre-mediation offers and demands your mediator something about your numerous articles and has been recog - and the policy limits in play. If plaintiff client or the case that you did not wish nized by Best Lawyers, Super Lawyers, counsel has not yet discussed “money” to include in your written state ment. Colorado Week (Mediator of the with his/her client, now is the time to This is a second chance for you to em - Year 2011), National Academy of Distin - have that focused conversation about an phasize positive points of your case. guished Neutrals, and The International acceptable settlement range. Talk to Seize the opportunity! Academy of Mediators (Past Vice-Presi - your client about: dent). Joe concentrates his practice in • A best day in ; VIII. Make Mediation Count the Rocky Mountain/Southwest region of the . He focuses his media - • A worst day in court; Mediation is no fairytale and it takes tion practice on emotionally intense all participants to make mediation count • A settlement offer the client cases that include catastrophic injury, cannot leave on the table. and produce that “happily-ever -after” ending. Both sides have the opportunity employment, , Defense counsel should have a simi - to secure a better mediation result for nursing home, , and wrongful lar settlement-range conversation with their respective clients by preparing de ath cases. A member of Conflict th e adjuster prior to mediation. If the for mediation sooner, rather than later. Resolution Services, Inc. (CRS), he can adjuster values the case at or near policy Help the adjuster secure the BEST be reached at 303-355-2314 or limits, and that valuation could poten - money on the case by providing all [email protected]. For a complete bio tially expose the defendant-insured’s relevant medical, causation and wage visit www.crs-adr.com. assets, defense counsel should arrange records and bills in advance of medi - to have the client and the adjuster pre - ation and do not “data dump.” Adhere Endnotes: sent at mediation. This is true whether to a timeline and use a checklist. Give 1 Joe Epstein, Data Dumping and Other the value of the case is based solely on the adjuster at least two to three weeks Problems in Mediation , TRIAL TALK economics or a combination of damages to secure settlement authority. Educate (April/May 2013). 2 and aggravated liability. clients about the process and talk about 2 If the case involves a punitive damages If something is a secret, tell your the money. Know ahead of time what assertion, the defendant may also have personal counsel in attendance at mediation. medi ator. He or she needs to know what amount lien holders are willing to has and has not been communicated or accept in full satisfaction of their bills.

32 October/November 2014 Trial Talk Colorado Trial Lawyers Association