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Personal Injury Mediation - Make It Count by Terrie Gay, Esq

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Personal Injury Mediation - Make It Count by Terrie Gay, Esq ALTERNATIVE DISPuTE RESOLuTION | Gay & Epstein Personal Injury Mediation - 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 defense 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 settlement 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 counsel 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 damages. 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 Trial Talk Colorado Trial Lawyers 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.
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