Mediation Minute

Best Practices for Mediating Catastrophic Injury and Large Losses in Transportation-Related Claims

September 9, 2022

Transportation claims suffer from frequency and severity. It stands to reason we should become more expert at resolving these cases short of trial. Catastrophic injury and large loss claims require a level of concerted activity prior to mediation that is sometimes underappreciated or overlooked.

Here are ten best practices to incorporate into your premediation routine when you defend transportation claims:

If you are a carrier or self-insured, instruct counsel to mediate pre-suit or within a short time after joinder of all parties in litigation. Mediation in large-loss cases is typically too late. There are historical reasons for this. When mediation was first court-ordered in the 1980s, it met with some resistance by trial lawyers who were skeptical of the process and feared “giving away trial strategy.”

Consequently, the mediation deadline was set by courts at the end of the discovery period. That may have been useful to placate some early objectors, but our success with mediation and modern ADR practice and theory says early communication with the claimant is key to securing a cost-effective settlement.

Unfortunately, case management orders have remained largely unchanged since the 1980s, resulting in delayed and sub-optimal timing. As a general rule, you should mediate presuit when possible or within 120 days of joinder of all parties. You may need an encyclopedia to try a case, but experienced counsel can mediate with a folder containing essential documents related to liability and damages.

As the defendant in a large-loss or catastrophic-injury claim, time is not your friend. Justice delayed is justice denied in the mind of the claimants. They view the failure to apologize, the failure to pay, and the failure to communicate as inequitable and mean-spirited, particularly when liability is clear. An early mediation communicates a willingness to address the problem.

Draft the pre-mediation submission for the claimant’s eyes, not the mediator. Explain the realities of the litigation, the non-litigation interests served by settlement, any hurdles in the plaintiff’s case, and the reasons why settlement serves both parties. Be factual, non-adversarial and avoid legalese.

The statement should include factors extrinsic to the litigation (e.g., time, delay, payment of medical bills, peace of mind). Answer the question, “Why settle now?”

Draft the position statement and get input from the client. The client may correct an error or make suggestions in tone and content that help. Send the statement to the claimant’s attorney at least two weeks before the mediation and copy the mediator.

Unless there is a serious risk of derailing the process, do NOT dispense with the opening session. Here is your opportunity to evaluate the claimant and the preparedness of their lawyer. Here is an opportunity for the claimant to be heard. You can also humanize the defendant, and show respect and empathy.

In that joint session, maintain eye contact with and speak to the claimant in a respectful tone. An apology is almost always a good idea. Avoid anything that could be construed as condescension. Tone is more important than content. The old mediator’s adage is true: You cannot settle a case in the opening session, but you can surely impasse one.

Do not give a hostile or liability-centered opening presentation. If the claimant seems annoyed or distracted, stop talking. It’s not a closing argument. Accept the reality: You need to make a deal.

 Select a mediator that the other side respects. If the mediator is trusted by the other side, they will be better able to carry your message and sell your last offer.

Plan, think, plan, and call. Call and email co-defendants in advance to make sure the other parties know their exposure. Be on guard for ill-prepared or uninformed defense attorneys or claims professionals.

If you need help settling the case, make sure the others see their exposure. How many times do we see a co-defendant’s counsel say something awful during the mediation that hurts the entire defense cause? You had better get a consensus on what is going to be spoken and who is going to say it. Perhaps the defense can live with one “speaker” in the opening session. Make sure the co-defendants are mindful of paragraphs written above.

Research the opposing counsel. Where did they go to school? A little small talk before the mediation formally begins is helpful. Play to their ego. One simple question to claimant’s counsel is all you need. Where did they go to school? Did you see the Gator game last weekend?

Client and carrier representatives should be personable. As the lawyer, coach the client and claims representative to be hopeful in tone and demeanor, passive and non-reactive during the opening presentation by claimant’s counsel. Avoid the appearance of agitation or annoyance. Do not schedule a return flight for 3:30 p.m. Most mediations really begin at 4 p.m.

If you are in suit, schedule two mediation sessions at the outset of the case – one early and one a few months later. One side or both will likely want a second mediation after extensive discovery, but no one likes to ask for mediation later in the case.

Therefore, scheduling two separate sessions at the outset is hugely beneficial. Both sides have an “escape hatch” woven into the case management plan. Claimant’s counsel is very likely to relish the idea.

If there are significant insurance coverage issues, determine whether you can use that to your tactical advantage. Use only strong and articulable coverage defenses. Too often we see a shotgun reservation-of-rights positions or straw man arguments that hurt your credibility and bespeak fear.

If they plan to speak during mediation, coverage counsel should tell liability defense counsel in advance what they proposed to say. Do not let coverage counsel poison the air.

If there are unrelated defendants, schedule a “defense–only” pre-mediation strategy session to discuss case valuation and potential pro rata contributions from each party/carrier participating in a potential settlement. Sometimes, an “insurer” only meeting without defense counsel is helpful. Often times, intra-defendant squabbling is the source of impasse.

There is a number the claimant will take. Consider a litigation funding arrangement to take down the claimant and reserve intra-defendant loss allocation problems for another day.

10 The thinking and work that gets done prior to mediation sets the table and creates the most favorable environment from which a settlement may blossom. Moreover, an impasse is not a failure. There is a lot of good information that can be learned during an early mediation that can influence how one litigates and which may provide a path to a later settlement.

Don’t walk away until you have thoughtfully crystallized the issues that need to be resolved, memorialized the information learned, and identified the work to be done. Clients want closure, not a trial. The smart advocate makes resolution the first priority.