Essential Strategies for Mediating Personal Injury Cases
The typical personal injury mediation follows a predictable format. The plaintiff, his or her attorney, defense counsel and the insurance company representative usually meet the mediator for the first time on the day of the mediation session. The participants meet with the mediator in a joint session, and the mediator will make introductions and give a brief opening statement followed by a statement by the attorneys, if one is present. This will be the last time all of the parties and mediator will meet together until the end of the mediation process.
At this point, the opposing parties will move to separate rooms and the mediator will continue to shuttle back and forth between caucus rooms relaying the latest offer or counter offer. The mediator will listen carefully to each participant as they explain the law or facts supporting their position. Ultimately, there is a significant amount of posturing from both sides. The mediator through the process of “reality testing,” helps the participants evaluate the specific facts of their case and the laws to determine the best and worst outcomes should the case go to trial.
After a series of individual caucuses, the mediator may be successful in bringing all participants to a mutually agreeable resolution. Once the agreement is reached through separate caucuses, the mediator brings the group together in joint session to review the agreement and have one of the attorneys draft the final agreement for signature of all of the participants.
Mediation has been an option for personal injury litigation and insurance disputes for many years. Currently, at the state level, in almost every jurisdiction, participants involved in a lawsuit are required to engage in some form of alternative dispute resolution (ADR) process as part of the court’s scheduling order or before their case is set for trial. Mediation is the fastest growing segment of ADR, and as such, plaintiffs and insurance companies are finding ways to resolve their cases prior to trial.
There are many reasons for using mediation in personal injury and insurance disputes. This article will examine the process of mediation as it applies specifically to personal injury disputes. Is mediation an effective process for resolving personal injury cases? Finally, this article will examine personal injury mediation from the mediator’s perspective.
Mediation is dispute resolution process wherein a third party neutral is used to help the parties negotiate a consensual and informed agreement. In cases involving an insurer and insured, the mediator is expected to assist the parties in defining and clarifying issues, facilitate communication, and explore options for resolution in an effort to reach an agreement. The focus is on facilitating the negotiation and decision making of the parties.
A mediator experienced in personal injury cases realizes that mediation is a very effective way of resolving personal injury claims. However, the typical one size fits all mediation format may not be the best way to reach a settlement in every personal injury case. “There are several aspects of a personal injury case that set it apart from other disputes; 1) the petitioner has little experience in resolving personal injury case; 2) the issue in dispute is typically distributive, meaning how much money will the insurer pay to the insured for the injury; 3) the issue being mediated is subjective;”[i]; and 4) there is not a continuing, ongoing relationship or interaction between the insurer and the insured.
Unless the plaintiff has been a party to other legal transactions involving the mediation process, this is most likely the plaintiff’s first experience involving a lawsuit and the plaintiff’s first experience with mediation.[ii] Conversely, from defense counsel’s perspective this is one of hundreds of claims he or she has handled, and mediation in this format, is a familiar process.[iii]
The distributive nature (who pays what amount of money to whom) of personal injury mediation is the second aspect that distinguishes it from other multi-issue disputes such as family, commercial and business disputes.[iv] The distributive nature of a personal injury case not only makes it ripe for parties to posture during the mediation process, but also makes it difficult for the plaintiff and defendant to engage in more than an exchange of possible settlement numbers. There is no countervailing concern about tomorrow’s business or family relationship.
An experienced mediator will facilitate a dialogue identifying the parties’ interests and priorities. The skilled mediator converts the distributive content ingrained in personal injury disputes into a non-distributive multi-issue discourse similar to a business or contract dispute where the discussion of settlement is expanded to include distribution of assets and allocation of debt. Transforming a distributive one-issue personal injury case into a multi-issue case includes possible structured settlements, and non-dollar matters such as an apology, providing the parties with more options for generating solutions during negotiations.
A further challenge to the personal injury mediation process is the subjective nature of the dispute.<[v] “While the claimant’s medical costs and lost wages can be calculated with some degree of mathematical certainty, the special damages, loss of consortium and pain and suffering are largely subjective.” [vi] Pain and suffering is extremely difficult to evaluate in an objective manner, and that difficulty extends into the mediation process.
The experienced mediators will and assist the parties in negotiating each of these issues independently. The mediator can focus the negotiations on the amount of money necessary to cover future medical expenses and lost wages before tackling the issue of pain and suffering.[vii] Establishing agreements incrementally, the mediator creates successes, wherein the parties are more willing to move onto the larger and more difficult issue of pain and suffering.
The fourth distinguishing aspect of personal injury mediation is that the typical plaintiff will have no need to continue their relationship with the insurer, even on re-negotiated terms, once the case is settled or litigated. The participants walk away from the table with no expectation of further involvement. Since most, personal injury cases revolve around the bottom line and nothing else, and in many personal injury mediations, the objective is to use mediation as a tactical or strategic purpose, the mediator must elicit the parties’ motivation or objective during the mediation process.
The mediator must determine whether or not the parties are jumping through hoops in an effort to obtain a trial date? Or, is one side attempting to gather additional discovery or tactical advantage? Is this the lawyer who keeps announcing that they have reached their bottom line (and this is the tenth bottom line of the day)? When parties come to the table with differing expectations and objectives and no motivation to restructure or continue a relationship, the case will be difficult to resolve and difficult to bring the parties back to the table at a later date.
The skilled mediator has the ability to keep the parties at the table and strategically work the parties through impasse. For example, to defense counsel, the mediator may ask, “What is your reaction to the plaintiff, and how has that affected your offer?” Or, when defense counsel gives the mediator a settlement offer, the mediator may ask, “What message do you think that sends to the plaintiff?” Or, “What message do you think the plaintiff is sending by proffering that demand?” The mediator may suggest to plaintiff’s counsel that he should avoid the bottom-line-final offer attitude and focus on articulating their client’s needs in a clear and honest fashion.
In mediation, good results are seldom accidental. The mediation process as an effective option for resolving personal injury cases requires significant time and effort. The following are a few-brief suggestions for both plaintiff and defense counsel to consider for a successful mediation.
The number one rule for effectively advocating for the plaintiff—know your client. Not just the fact that your client wants to soundly defeat the opposing party. An effective attorney in mediation works from an interest-based approach and when preparing for mediation, determines their client’s “needs” and “interests.”
“The needs and interests are similar to a pyramid structure. The client’s wants are the tip of the pyramid, and the underlying needs, interests, values, communication patterns, and identity concepts comprise the pyramid’s foundation.” [viii] This will assist the attorney in helping the client to think in terms other than win/lose.
Educate your client about the mediation process. Preparation for mediation is a team effort. Work with your client to define their objectives, determine and set goals as to where your negotiations will start. The client should understand that the mediation process is lengthy, and in a personal injury case there are rounds of offers and counter offers. Discuss with the client and prepare a strategy of how you are going to respond to the various rounds of offers and counter offers.
Prepare your client as an active participant in the mediation process. The client’s perspective and insight is important to the mediator. The mediator may call on the client to describe the situation and his or her interest in settlement. Emphasize to your client the importance of appearing calm and rational during the process.
Defense should be prepared to settle. All stakeholders, including trial attorneys, any representative of any potentially liable insurance company who has the final authority to approve settlement of all claims and interests must be present during mediation. The defense should have thoroughly considered their settlement parameters and discussed them with their client.
The defense should know and be prepared to disclose to plaintiff any information as to settlement amounts in comparable cases. In private caucus, prepare to explain your defense, including disputed and undisputed causation and liability issues. Preparation for discussion of these above issues helps defense counsel and the insurance representative evaluate the claim and ultimate benefit of a mediated resolution.
The defense should be prepared to offer an apology to the plaintiff. Professor Jennifer K. Robbennolt conducted an extensive empirical study examining the effect of apologies on legal settlements.
“The results…suggest, however, that apologies influence settlement in relatively complex ways. Several factors, such as the nature of the apology, the severity of the injury, and the other evidence of responsibility, affect the capacity of an apology to facilitate settlement. Full, responsibility-accepting apologies positively impacted participants’ perceptions of the situation and prospects for settlement. Conversely, partial sympathy-expressing apologies had fewer effects, had both positive and negative effects, and were more dependent on context.”[ix]
Robbennolt’s findings support the conclusion that defense attorneys need to seriously consider not only the nature of the apology as part of their preparation for mediation, but how and when to offer an apology as part of their negotiation strategy.
Both sides should know their BATNA (best alternative to a negotiated agreement).[x] This includes an honest assessment of the range of possible results if no settlement is reached during mediation. In all personal injury cases, the BATNA includes the length and expense of trial preparation and what possible outcome either side may expect at trial.
“Validate your opponent’s file.”[xi] Review your own file and confirm that the other side has all of the materials necessary to fully negotiate at mediation. There is statistical evidence to suggest that, “[twenty-one percent] of all failed mediations fail because one party did not prepare properly or thoroughly, often because a necessary medical report, bill or similar item was not provided to the other party.”[xii] The goal is to have all of the data and documentation necessary to negotiate a settlement prior to attendance at a mediation session.
Plaintiff and defense counsel should be prepared to discuss in private caucus with the mediator, causation, damages, and any pre-existing injuries. Furthermore, the parties should be prepared to present all pros and cons relating to the damage issues in the case. Be sure to address issues of contributory or comparative negligence. In many cases, there are instances where unanticipated issues may arise. These issues should be addressed immediately and placed on the mediation agenda for discussion to avoid the appearance of an ambush at mediation.
Managing the complexities of the mediation process is a challenge for even the most skilled mediator. Many mediations begin with one or both sides stating, “I have to be honest, I don’t think we will be able to settle this case, we are too far apart.” Fortunately, mediators have the advantage of neutrality, emotional detachment, and control of the process, giving them techniques that enable to them to change that attitude.
From the mediator’s perspective, establishing control over the mediation process begins with brokering the case. Many mediators begin the process with a brief phone conference with each of the parties, to obtain a preview of the case. During that phone conference, the mediator may request each side to submit pre-mediation information, including confidential information and information that has been shared with the other side.
As part of the confidential statements, mediators want the parties to set forth what they believe are the impediments to settlement, both from their perspective and the other sides perspective. Mediators may also request that each side to set forth their goals and what they wish to accomplish during the mediation session. In many situations, mediators may request that the parties arrive at mediation with three separate proposals that coincide with their goals. These can be used to focus the negotiations.
Once the parties have submitted their confidential statements, mediators have the basic information in which to organize and structure the mediation. In many instances, based upon the information that is received in the confidential statements, mediators will schedule separate phone conferences or interviews with the parties. The purpose of this contact is three fold. First, the mediator may need to obtain a better understanding of the emotional content within the case. This meeting gives the parties an opportunity to fully convey, in their own words the experience that brought them this far. Second, this session may provide the mediator with important facts or details that were not fully set forth in the confidential statement. Third, a pre-mediation session allows the parties and the attorney’s to meet, evaluate and establish trust and comfort level with the mediator before the first joint session.
Although the confidential statements and pre-mediation sessions may take time, the information obtained allows the mediator to significantly reduce the down time between the series of caucuses when the actual mediation begins. Finally, pre-mediation sessions allow the mediator to establish the ground rules prior to the joint session. The mediators can explain to the parties that they will listen politely and carefully to what they have to say. Mediators expect that both sides show respect for each other, the parties involved, the mediator and the process.
Mediation is a powerful process that is successful in moving parties toward settlement. Although personal injury cases are unique on many levels, the mediation process can be strategically structured to facilitate and expand discussions of parties’ interests and needs. Whether the personal injury case is court ordered into mediation or the parties voluntarily agree to mediate, this means that plaintiffs’ lawyers and defense counsel must be fully prepared to represent their client’s in this forum. As attorneys better understand the mediation process and have an increased knowledge of what may be expected from an experienced mediator, this will result in more settlements reflecting the parties’ interests an
[i] Robert S. Glenn, Jr., Mediating the Personal Injury Dispute, 9 Claims Forum 3 (Fall 1995), available at http://www.huntermaclean.com/Library/publication_52.asp.
[viii] Eva Soeka, Lecture at a Seminar Presented for African Leaders by US AID, Marquette University (June 19, 2007).
[ix] Jennifer K. Robbennolt, Apologies and Legal Settlement: An Empirical Examination, 102 Mich. L. Rev. 460, 515-516 (2003).
[x] Roger Fisher, William Ury & Bruce Patton, Getting To Yes Negotiating Agreement Without Giving In 97 (Penguin Books 1991).
[xi] Specific Applications for Mediation, available at Mediation Services, http//:adrr.com/adr1/essayd.htm.