Mediation Minute

A Few Words to Plaintiff’s Counsel

One man pedals on his bike uphill
June 29, 2023

Now that the majority of mediations are conducted via Zoom, I think Plaintiffs’ attorneys will need to work a little harder than Defendants. Why so? Before remote attendance was commonplace, defense counsel, the defendant, and the insurance
carrier, if any, came from somewhere and sat in a room all day. They flew or drove to the location. Significant dollars were spent to attend mediation. Those participants did not want to drive or fly home with a declaration of impasse pondering why the case didn’t settle, what they could have done differently, or pacifying the anxious defendant who still faces litigation. Back then, there was a sense of collective failure if there was an impasse after a long day of mediation. With remote attendance, an impasse or “loss” seems to engender less angst and seems easier to digest. When mediation is over, you click out of the Zoom room and move on to the next thing. As a former insurance defense attorney, I think that the in-person mediations offered a little help to the Plaintiff’s cause – if only because of the collective desire to avoid the drive home pondering and ruminating about the impasse (maybe it’s me and there is a lesson here about moving on?). If you accept that notion that online mediation makes it a little easier for the defendants to go home without a deal, it may be prudent for Plaintiffs’ counsel to work a little harder in advance of mediation to make sure the defendants have all they need to put their best dollars forward. I can suggest a few things Plaintiffs’ counsel might consider in advance of mediation.

First, don’t let the file run cold. A file with little activity bespeaks low value. Find some paper to serve in the 30 days before or set depositions for the day after the mediation. You want to get the attention of the decision-makers. If the Plaintiff sends material to defense counsel it will go to the client or carrier. That might spur some conversation about settlement in lieu of answering discovery. A little poke is okay.

Second, send a position statement with a demand a couple of weeks or more before mediation starts. The bigger the demand, the more lead up time you need. A big bomb needs a long fuse. I cannot tell you how many times I have heard defense
counsel or the carrier complain, “why I am hearing this for the first time today?” Good question. Surprises are okay at birthday parties, but not in mediation. New demands and new material information do not go over well. If you are making a lost profits claim, you had best articulate that claim in detail in advance. Same for wage loss. Keep the medicals and liens updated. One might think this is common-knowledge, but I can tell you it is not standard practice. Part of the problem is the absence of rules. Mediation does not come with rules requiring meaningful and timely disclosures. So good mediation preparation is self-taught and self-policed.

Third, particularize your Plaintiff, particularly in personal injury litigation. Unless you have a strange case, the claims professional will have seen your client’s injuries dozens of times. Your challenge should be to find something that makes your client and their claim different. Finds something about the person or the claim that is underappreciated, something they have lost, an emotional injury, or a lost relationship. At the end of the day, I always look for something that makes this Plaintiff deserving of a few more dollars. Alternatively, find something about the case that might give the defense some heartburn. Former employees? A statutory claim with fee exposure? Mention any special or unusual aspects of the claim or
injuries in your  position statement and revisit those facts or themes in the opening session. Avoid overreaching. If you have a client control problem, let that be known to the mediator in advance.

Finally, during the opening session, don’t criticize the person or organization holding the checkbook for not mediating sooner or for some other process-related hassle or prior insult. If you want to get paid, why insult the payor? You get more flies with honey than vinegar.

Online mediation offers convenience and cost savings, but there is a loss of urgency or collective engagement that may indirectly hurt the Plaintiff’s cause. A little extra effort before mediation may induce the defense to bring a few more dollars that may make settlement easier. Favorable settlements are the product of thoughtful preparation, disclosure, and communication before we gather.