Setting the Stage for Success at Mediation, Act 1: Preparing the Plaintiff
Preparing the Plaintiff
Improving the chances of success at a mediation requires special attention to a myriad of details beyond brief preparation and mediation advocacy. Mediation is the one place short of trial where the parties have a chance to be in the same room. It’s important to understand the ways a client can be best prepared for this opportunity.
Managing Plaintiffs’ Expectations
This process starts at the very beginning. What did you tell a client about the outcome of their matter at the time of the first retainer? If you told them that the case could be worth $X you can be sure that is what they will remember. Keeping a plaintiff regularly apprised of the evidentiary changes that impact value is the best way to ensure that they will not arrive at mediation with an unrealistic view of the claim. Doing this in writing acts as an aide memoire for yourself. Keep the client apprised of the weaknesses in their case in writing so they will not be surprised when the words come out of the defence counsel’s mouth in an opening. Explain the deductible and threshold regularly as well as the attendant risks of trial, especially the cost implications of offers and bad results. Educate a client on what their pre-accident clinical notes actually say and the impact on credibility.
Pre-Mediation Meeting
If you have been actively managing expectations with a plaintiff, you will not have to spend much time analyzing the strengths and weaknesses of the case, including threshold and deductible, prior to a mediation. Instead, you can concentrate on the expected range of results, emphasizing that it’s a range. Lawyers don’t have crystal balls, but experience and attention to reported cases guide counsel to a recommended range. Ultimately, the decision to accept a figure that is less than the low end of the range is the client’s prerogative, and they should be aware of this option. A lawyer can never guarantee any outcome at a trial.
Explain what the role of a mediator is to your clients. Mediators are not judges or decision makers, but they have considerable experience in the subject area and a client should listen carefully to the questions a mediator asks and the messages delivered in caucus.
Clients need to understand the physical setting of mediations. They should know that mediations begin in a face-to-face meeting with the other side, and that the opposing lawyer will have an insurance professional with them. The mediator will start with an opening directed largely at the plaintiff. The reason for this is that the plaintiff is likely the only person in the room who has never attended a mediation.
Following the mediator’s opening, plaintiff counsel will make an opening statement. Remind the plaintiff that they will likely agree with everything their own lawyer says but, if they hear something that they don’t agree with, they should wait until they are alone with counsel to discuss it. Following the plaintiff’s opening, the defence lawyer will then share an opening statement. It’s likely that a plaintiff will disagree with nearly everything the defence says, but it is nevertheless important to listen carefully to understand the opposition’s case. Interruptions are not permitted, as everyone must be heard.
After the openings, there is usually the chance for the plaintiff to say a few words, if this is of interest. Unlike discovery, there is no requirement that plaintiffs speak, but this is the only time in the process that they can speak directly to the decision maker on the other side. They should be told that if they want to respond directly to a comment from the other side that they should do so in a calm and sincere manner. Histrionics are rarely persuasive. If the plaintiff chooses to make an opening statement, it should be crafted ahead of time and reviewed with counsel beforehand.
Once the openings are finished, the parties will separate and head for their own rooms where the negotiating begins. At its essence, a lawsuit is a commodity to be sold by a plaintiff to a buyer, who is the insurer. A client needs to understand that the only compensation that the system has to offer is money, which is a poor substitute for health.
The opening figures should be reviewed with the plaintiff before the day of the mediation. A plaintiff must be told not to become attached to the numbers. As in any negotiation, the seller starts high and has nowhere to go but down. The buyer starts low and has nowhere to go but up. Do not let the defence’s opening low offer create undue pessimism. The only number to pay serious attention to is the final one.
A pre-mediation meeting is also an opportune time to remind a plaintiff of the retainer agreement’s terms. One way of doing this is to pick a number and go through the process of breaking down that number to what the client will get “in their pocket.” Go through the calculations with a principled offer that has a breakdown and an all-inclusive number. If you choose a low number to use as an example, then you are reinforcing expectation management. Indicate to the plaintiff that when numbers edge into a range that the client should consider, you will do that breakdown so that they know where they truly stand in terms of outcome after expenses and fees. Review disbursements so those figures are not a surprise when added into the mix.
Finally, it’s helpful to review the documents they will be required to sign if an agreement is reached. An instruction sheet which sets out the settlement figure and the net proceeds to the client should be reviewed. The net proceeds to client is the client’s guarantee. What they get “in their pocket” will never be less than what the instruction sheet says. They should also be reminded of any tax implications of the settlement. Minutes of settlement and/or a final release should be reviewed conceptually so that the client understands that the case is finished and neither side can re-open it.
Most cases are resolved in an alternative resolution setting with mediation acting as the cathartic substitute for the “day in court.” By managing client expectations, including the file value, the facts and issues in dispute, and what is to be expected on the day of the mediation, a plaintiff will be properly equipped to conclude their case.
Improving the chances of success at a mediation requires special attention to a myriad of details beyond brief preparation and mediation advocacy. Mediation is the one place short of trial where the parties have a chance to be in the same room. It’s important to understand the ways a client can be best prepared for this opportunity.
Managing Plaintiffs’ Expectations
This process starts at the very beginning. What did you tell a client about the outcome of their matter at the time of the first retainer? If you told them that the case could be worth $X you can be sure that is what they will remember. Keeping a plaintiff regularly apprised of the evidentiary changes that impact value is the best way to ensure that they will not arrive at mediation with an unrealistic view of the claim. Doing this in writing acts as an aide memoire for yourself. Keep the client apprised of the weaknesses in their case in writing so they will not be surprised when the words come out of the defence counsel’s mouth in an opening. Explain the deductible and threshold regularly as well as the attendant risks of trial, especially the cost implications of offers and bad results. Educate a client on what their pre-accident clinical notes actually say and the impact on credibility.
Pre-Mediation Meeting
If you have been actively managing expectations with a plaintiff, you will not have to spend much time analyzing the strengths and weaknesses of the case, including threshold and deductible, prior to a mediation. Instead, you can concentrate on the expected range of results, emphasizing that it’s a range. Lawyers don’t have crystal balls, but experience and attention to reported cases guide counsel to a recommended range. Ultimately, the decision to accept a figure that is less than the low end of the range is the client’s prerogative, and they should be aware of this option. A lawyer can never guarantee any outcome at a trial.
Explain what the role of a mediator is to your clients. Mediators are not judges or decision makers, but they have considerable experience in the subject area and a client should listen carefully to the questions a mediator asks and the messages delivered in caucus.
Clients need to understand the physical setting of mediations. They should know that mediations begin in a face-to-face meeting with the other side, and that the opposing lawyer will have an insurance professional with them. The mediator will start with an opening directed largely at the plaintiff. The reason for this is that the plaintiff is likely the only person in the room who has never attended a mediation.
Following the mediator’s opening, plaintiff counsel will make an opening statement. Remind the plaintiff that they will likely agree with everything their own lawyer says but, if they hear something that they don’t agree with, they should wait until they are alone with counsel to discuss it. Following the plaintiff’s opening, the defence lawyer will then share an opening statement. It’s likely that a plaintiff will disagree with nearly everything the defence says, but it is nevertheless important to listen carefully to understand the opposition’s case. Interruptions are not permitted, as everyone must be heard.
After the openings, there is usually the chance for the plaintiff to say a few words, if this is of interest. Unlike discovery, there is no requirement that plaintiffs speak, but this is the only time in the process that they can speak directly to the decision maker on the other side. They should be told that if they want to respond directly to a comment from the other side that they should do so in a calm and sincere manner. Histrionics are rarely persuasive. If the plaintiff chooses to make an opening statement, it should be crafted ahead of time and reviewed with counsel beforehand.
Once the openings are finished, the parties will separate and head for their own rooms where the negotiating begins. At its essence, a lawsuit is a commodity to be sold by a plaintiff to a buyer, who is the insurer. A client needs to understand that the only compensation that the system has to offer is money, which is a poor substitute for health.
The opening figures should be reviewed with the plaintiff before the day of the mediation. A plaintiff must be told not to become attached to the numbers. As in any negotiation, the seller starts high and has nowhere to go but down. The buyer starts low and has nowhere to go but up. Do not let the defence’s opening low offer create undue pessimism. The only number to pay serious attention to is the final one.
A pre-mediation meeting is also an opportune time to remind a plaintiff of the retainer agreement’s terms. One way of doing this is to pick a number and go through the process of breaking down that number to what the client will get “in their pocket.” Go through the calculations with a principled offer that has a breakdown and an all-inclusive number. If you choose a low number to use as an example, then you are reinforcing expectation management. Indicate to the plaintiff that when numbers edge into a range that the client should consider, you will do that breakdown so that they know where they truly stand in terms of outcome after expenses and fees. Review disbursements so those figures are not a surprise when added into the mix.
Finally, it’s helpful to review the documents they will be required to sign if an agreement is reached. An instruction sheet which sets out the settlement figure and the net proceeds to the client should be reviewed. The net proceeds to client is the client’s guarantee. What they get “in their pocket” will never be less than what the instruction sheet says. They should also be reminded of any tax implications of the settlement. Minutes of settlement and/or a final release should be reviewed conceptually so that the client understands that the case is finished and neither side can re-open it.
Most cases are resolved in an alternative resolution setting with mediation acting as the cathartic substitute for the “day in court.” By managing client expectations, including the file value, the facts and issues in dispute, and what is to be expected on the day of the mediation, a plaintiff will be properly equipped to conclude their case.
