Clients often ask me if “my case will have to go to court?” By that question, they mean, will it have to be tried before a jury, or will it settle “out of court.” Most clients, even those who appreciate that they could get significantly more money with a verdict than through settlement, prefer the surety of a settlement over the high stakes gamble of a big score vs. nothing. Sometimes a case that appears inevitably headed for trial, can be resolved with the help of a professional mediator.
Many courts now require counsel to file a certificate, attesting that they have discussed with their clients, the possibility of alternate dispute resolution (“ADR”). Some clients are eager to mediate a case, thinking it a quick road to compensation. I explain to my clients that mediation can result in a fair settlement, but only if used properly, and in the right case. The most important point I make to clients is that mediation cannot be seriously considered too early, lest the defendant’s insurer take it as an opportunity to offer short money. In a case of serious personal injury, there is usually no alternative to completing discovery before mediation is proposed.
Mediations in wrongful death cases or other serious injury cases, can never be approached casually. I generally prepare a mediation book to be distributed to defense counsel, the insurance adjustor, and the mediator. The book – a large 3-ring notebook, will contain a bullet point summary of plaintiff’s position, and key deposition pages and exhibits advancing plaintiff’s case. In appropriate cases, I will be prepared with blowups or other demonstrative evidence, including day-in-the life or other persuasive videos. In one case, involving a little girl who died when an improperly protected construction trench collapsed on her, I used a CD of the mother’s chilling “911” call.
The purpose of a mediation is to persuade the defense that they face significant exposure at trial. Even though there are no rules of evidence at mediations, I use exhibits and demonstrative evidence that I know will be admissible at trial. Although I may make an exception, for example, a narrated day-in-the life, I want to avoid using evidence that is dismissed because defense counsel advises the insurance adjustor that a jury will never see it.
I always caution my client not to go into a mediation believing that they must come out of it with a settlement at any cost. Every experienced plaintiff’s counsel has seen the mediation process abused, with the defense proffering a trivial offer, and using the mediation for discovery purposes. Other times, if the defense sees a strong plaintiff’s case and is unable to extract excessive concessions at mediation, a case that fails to settle by the end of the day, may still settle before trial. The mediation will not have been wasted, because it set the stage for settlement.
I will write a piece on the subtleties of the mediation process in another blog. Mediations can be useful tools, if prepared for thoroughly, and attended with the attitude that trial is the answer if the defense is too stingy by mediation’s end.