PERSONAL INJURY MEDIATION

Taking Advantage of Court-ordered Mediation
I practiced for a number of years representing injured people. Later, I worked in house at an insurance company defending lawsuits. If you are like me, at some point in time, a court has ordered you and the person you represent to participate in mediation. You may have felt that this was another hoop you had to jump through to get your case to trial, and been less than enthusiastic at the prospect. You may have been concerned about giving the other side information that could be used to prepare their side of the case. Or you may have felt pressure due to the number of scheduled events on the calendar that require your attendance and preparation. Although this article is directed especially to Plaintiffs’ attorneys, many of the same points also apply to the Defense side.Often, attorneys representing injured clients are also put off by the claims adjuster they have been dealing with, and feel they are not trying in good faith to resolve the claim. They may be frustrated by discovery requests from defense counsel that seem endless and tedious and calculated consume their time and wear them down. However, understanding the role these players are cast in and what their parameters are may help in using mediation to advantage and getting a good result for your client.

Whether to use the Court mediator or hire a private mediator
One of the first considerations is whether to use a court-appointed mediator or a private mediator. Court mediators are often limited in time and services. Private mediators are more able to provide flexibility and additional services. In some courts, you may not know who the mediator will be until the day of the mediation. Personality and style may make some mediators better for a particular case than others. In some cases you may want to tell the Court that you’d prefer to hire a private mediator, and generally the Court is happy to allow that.Whether you opt for a court mediator or a private mediator, there are some things you might consider in preparing for and taking advantage of a court order to mediate.

The Effect of the Claims Process on Mediation
First you should know, and many of you will already, that Insurance claims professionals are highly trained and experienced, especially at the litigation level. Most have college education, and many have J.D. or Masters Degrees. Many then went through a number of classes in underwriting and have qualified as Certified Property and Casualty Underwriters (CPCU) by taking a rigorous multipart examination. Then they may have spent years in underwriting before getting an opening in field claims.As field claims reps, claims professionals spend a lot of hours on the road and on the phone, visiting accident scenes and residences, taking pictures and recording statements, gathering medical records and documenting their files. Often they are extremely overworked and always they have senior claims people looking over their shoulders. Although the claims process varies, the claims professional is always under a duty to fully document the justification for any and all amounts paid out, whether for property or bodily injury, or other covered amounts. They are never free to just go by gut instinct or a general feeling about the value of a case. This is true at all levels of the claims process.

In many companies, as soon as a Complaint is received the file goes to a claims supervisor or manager, often in the home office or other central location, who handles litigation files. This person selects counsel to represent the insured, reviews and independently evaluates the claim, and forwards the claim file to counsel along with the Complaint to answer, and hopefully contact info for the insured. From Plaintiff’s perspective this means another pair of eyes to review the file and another chance to convince someone of the claim’s merit. However, just like field claims people, the claim supervisor or litigation specialistis not free to pay what he or she wants, but must document everything. He or she also has people to report to in the hierarchy and has to justify his or her actions to them.

The role of Defense Counsel
Defense counsel also has a job to do. By the time the complaint goes from the insured to the field claims rep to the claims supervisor to counsel, answer time may be short. Counsel must contact the client and establish an attorney client relationship, do some factual investigation, check service of process, independently analyze the information in the claims file and file an Answer setting forth every affirmative defense he may need. He or she must also prepare a plan of defense and submit a defense budget. One of the best ways to get on his or her good side is to allow a reasonable extension of time in which to answer.The attorney may not always get everything you have provided previously with the claim file. He or she must independently verify all the facts and then make sure the discovery is adequately developed for defense. This includes all medical records that may have a bearing on the issues of injury and causation. The attorney may not just rely on a medical package from Plaintiff’s counsel, but usually is required to request original copies from the providers. The attorney must verify accident facts, interview witnesses, obtain additional information such as accident reconstruction, discover and depose the Plaintiff’s experts and numerous other tasks to adequately prepare the case.

What Plaintiff’s attorneys should consider is that this entire process is not personal, all of these people are just doing their jobs, everyone has someone to answer to. The best way for personal injury attorneys to settle cases for full value is to try to assist this process by providing information. Remember, they have something you want: money. You, in turn, have what they need: information. If they get the information and if it bears out the Plaintiff’s case, they will generally settle. If the relationship has not been as smooth as silk, the order from the Court to mediate could be an opportunity to get a fresh start.

So what is the case worth?
Everybody wants to know what the case is worth. We don’t want to settle for too little. What we all know and understand is that when the jury comes back, the case is worth whatever they say it is worth. All the offers and demands and arguments and attempts at persuasion are worth nothing at that point. If the jury has just rejected your case or rendered a low verdict, you get the miserable task of explaining that fact to the client. There is no more deflating and depressing job on earth than telling your client it’s over, we lost.
The value of Mediation
On the other hand, the fundamental law of economics prevails in mediation. Any claim is worth what a willing (even if reluctant) buyer will pay a willing (even though slightly disappointed) seller. In that way a claim is like a share of stock. Stocks go up and down depending on the day’s news. Claims do as well. If the Plaintiff gets a good opinion from the doctor, the case’s value may rise. If the Defendant has surveillance videotape, the claim’s value can plummet.As a mediator, I don’t like to tell people what the case is worth. It is far better to get those opinions from counsel in private and compare to see if there can be a middle ground. Often, I find people are far closer than they think they are. One thing is sure though: after the jury comes back, it doesn’t matter what anyone thinks. So, a smart negotiator will use the risk factor to his advantage to leverage the other side to a decent settlement before that happens.

Another side of the equation is expense. Case expenses come out of what your client gets after the dust settles, so the expenses should be evaluated with the client and from the client’s perspective. Considering the risk of a low verdict and the expense of trial and looking at the case honestly as an evaluator, often the best result for the client can be achieved through mediation.

So, how to take advantage of the court ordered mediation?
I suggest the first step is to talk to opposing counsel and ask them what they will need and what the claims department at the insurer will need to get the case in a position to mediate. Getting all the medical records and authorizations out timely is going to assist the claims person to set adequate reserves and make a timely evaluation and be prepared with adequate authority before the mediation. Too often I see cases where the claims person complains he or she was “hit” with new information only a few days before and has not been able to bring it to the attention of senior claims personnel and ask for additional authority. Even then, documentation is inadequate. Optimally, the medical information should not be a moving target going into the mediation. Talking to opposing counsel before the date and discussing the importance of the developments and deciding together whether additional time is needed to work up new developments is better than showing up the day of the mediation and finding out the case can’t be resolved due to unanticipated issues.Of course if parties agree, cases can be settled with undevelopedmedical evidence. But to do that, both sides must be on board and know that these issues are unresolved and agree to go forward. It is a matter of sound legal judgment whether to proceed in the face of incomplete discovery and one both sides should come to terms with beforehand.

The medical and other expenses also need to be fully obtained and analyzed to have the best chance of a good recovery at mediation. In Ohio, if there are Robinson v. Bates issues, the numbers should be calculated ahead of time. It is a sound practice to share the analysis of medicals with the opposing attorney and agree on the numbers before the mediation. This saves time and confusion at mediation and is rewarded with trust from the other side. The more credibility Plaintiff’s counsel brings into the mediation, the better the results tend to be.

Demands sent out before a mediation should be well in advance and should be well-thought-out in amount. A demand sent the Friday before a Monday mediation is not likely to be well received and may best be held until the mediation and discussed with the mediator.

One reason is that claims department policy often requires claims professionals to set reserves early and not to “stair step” reserves. A claims person may feel that the practice of sending out high demands the Friday before a mediation puts him or her in a bad light with the people he or she must answer to. This tends to throw cold water on the process. If the demands are going to be high, the sooner claims knows this, the better.

Demands that are too excessiveare also counter-productive. It doesn’t help to have opposing counsel walking in believing there is no real chance of settlement, which is the impression they have if the demand is excessive.

If you carefully analyze the case and figure out what you hope to settle for that has a reasonable chance of being paid, and that your client is prepared to accept, then a demand of 2-3 times that amount will put you in a better position to settle than 10X. Also, if the demand is high, expect opening offers to be low.

Liens
One of the biggest obstacles in mediation of personal injury cases is the medical liens. Talking to the lien holders in advance can be critical. Many cases go out unresolved that would have been settled if the attorneys had contacted lien holders in advance and determined what they could settle for, or at least had someone available by phone at the mediation. Often these cases can be resolved with a follow up phone call, but court mediators do not always perform this service, and are under no obligation to do so. Since you know you will have to settle with lien holders at some point, it makes sense to make contact early and work with them. If there are Medicaid issues consider including them into the suit. ODJFSattorneys in Ohioare good to work with and the mediation process will be facilitated, almost always. Medicare cases require you contact CMS and begin the process as early as possible to avoid having a stumbling block at mediation.
Case Preparation
The most important step in mediation, just like in trial, is preparation. It is critical to know your case backward and forward, and if possible better than anyone else knows it. Consistently, I have found that the attorneys who spend the most time in preparation get the best results for their clients. It’s amazing how that works. They are able to pull out a document and a picture to counter every argument advanced by the other side. This is how they can force the other side to concede points or dollars. The mediator may convey these points or have joint conferences and let counsel explain the role of a piece of evidence. Spending a few extra hours learning the case in detail has in my experience resulted in better recoveries, and both the mediator and opposing counsel are aware of who does that work on a regular basis, time after time coming in prepared. They know the attorney is ready for trial when he or she easily discusses facts and has evidence at his or her fingertips. This also generates trust, when everything the attorney represents as true is documented and supportable.As important as preparing with the facts and evidence is preparing with the client. A serious conversation explaining the differences between trial and mediation and the pros and cons of both helps to relax and prepare the client for what may seem like a strange process. Also, a serious discussion of case value and reasonable expectations will make things go much smoother at mediation. These should be done ahead of time in the attorney’s office if at all possible. The client should know where and when to arrive, where to park, going through security, and all the information needed to make sure they don’t arrive nervous and upset. This helps the clients to trust the attorney and the process.

As you may have gathered, trust is essential in mediation. The Plaintiff and Defense teams, the mediator, and clients must establish a level of trust to get the job done. Understanding the role of the other side, being forthcoming and providing information and documentation make it easier to establish trust, and assure that when you do settle that the result will be the best for the clients.




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