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By: Richard A. Cook, Esq.

Greetings, TPS Nation! Today, we’re bringing attorney, Rich Cook, back to the TPS stage to share what should be on our collective, attorney/paralegal radars, when preparing a client’s case for mediation. Obviously, anything involving legal advice should be handled by the supervising attorney, but that doesn’t mean a paralegal can’t step up in a big way to prepare the file, put the client’s mind at ease, wrangle the details, and get that file up to speed for the grand event. Here’s your mediation checklist!

Thorough preparation for a mediation session increases the odds that your firm will be able to effectively and efficiently move your client’s case towards settlement. Below is a checklist of items to address prior to your mediation:

1.  Selection of a Mediator: This task is done in cooperation with the opposing party. If the ­case involves particularly complex issues and multiple parties, you may want to research and identify mediators who specialize in handling such cases. It is often useful to have a mediator who is familiar with unusual or complex legal issues (i.e. insurance coverage claim, multi-party construction contract dispute, pollution lawsuit, or intellectual property dispute, etc.). This will result in a more efficient use of the parties’ time at mediation. Remember, the mediator spends a great deal of time listening to a party’s position and carrying the parties’ messages back and forth. If you have a mediator with a background in the area of dispute, then he can more accurately explain a party’s position and suggest solutions to the dispute which may have been overlooked.

2.  Complete all needed investigation and discovery:  This should be done for any pivotal factual issues or key witnesses:

a.         eyewitnesses

b.         investigating police officers

c.         primary treating physicians

d.         accident reconstructionists

e.         liability or damage experts

3.  Liens and Litigation Expenses: Verify dollar amounts and complete contact information of adjuster/representatives for all outstanding liens asserted against your client. If the lien holder’s consent will be need to settle the case, advise him of the mediation date and time, so he can be available to you and the mediator. Some mediators are very effective at working down liens. You should consider the following types of liens:

a.         Medicaid Liens

b.         Medicare Liens

c.         Health Insurance/ERISA Liens

d.         Medical Payments Liens (auto or premises)

e.         Disability Insurers

f.          Hospital Liens

f.          Other Creditors

In addition to liens, you should be prepared to address the costs you anticipate the client will have to pay out of any settlement if the case settles now versus if the case goes to trial. Make sure you have a handle on all litigation expenses including attorney fees, investigation costs, filing fees, expert fees, deposition expense, videotaping charges, filing fees, witness fees, exhibit preparation, coping costs, and other expenses which will come out of any settlement. Clients want to know what the bottom line is if they settle today, and mediators will often ask the attorney about these expenses.

4.  Legal Research:  Conduct research on any pending or likely motions for summary judgment and be ready to address the merits of the same legally or factually weaknesses.

5.  Expert Reports:  Obtain any needed reports of expert opinions on any pivotal issues of liability or damages, and disclose any favorable findings sufficiently in advance of mediation to allow the opposing party to digest and consider the findings in their analysis of the case’s value.

6.  Medical Records and Bills (or other key documents, if not a personal injury claim):  Supplement and disclose all medical records and bills documenting client’s treatment sufficiently in advance of mediation to allow the opposing party to digest and consider the findings in their analysis of the case’s value.

7.  Pending Motions:  If there are pending motions not ruled upon by the court, such as discovery disputes, motion to bifurcate, summary judgment or other dispositive type of motions, then consider whether or not this will prevent any meaningful settlement negotiations until the motion is resolved. Sometimes a party will file such a motion to simply gain leverage during the negotiation process.

8.  Indispensable Parties:  Are there additional parties who bear joint responsibility for the harm being litigated and who are not joined as a party? If there is an insurance coverage dispute, then the attorney will need to have all parties from the declaratory judgment action available for the mediation because they may be the actual decision-maker with the settlement money. He may need to have parties from both the liability case and the insurance coverage case present. If the “insured”/defendant has assets, the attorney may want him present to hear what is being discussed and consider whether he wishes to make up any shortfall between what the insurer is willing to pay and what is being demanded. The insured/defendant can also bring pressure to bear on the insurer if he is underinsured or only partially covered for the claim being made. If this is the case, then make sure you include any attorney privately representing the insured defendant in the settlement process.

9.  Audio Visuals and Exhibits:  Your attorney may want to use demonstrative exhibits during joint presentations such as a day-in-the-life video, video excerpts of a party’s deposition, MRI or X-rays, photos of your client’s injuries, diagrams or pictures of the scene, etc., (any key documents if it is not a personal injury claim). Remember, a good picture is more eloquent and persuasive than any words you could use!

10.  Preparation of Mediation Statement:  The following are areas typically addressed:

a.         Parties to the lawsuit and their background

b.         Allegations and defenses

c.         Procedural posture of the case

d.         Statement of the case

e.         Injuries, lost earnings and special damages

f.          Disputed factual issues

g.         Pivotal legal issues

h.         Analysis of legal and factual issues (both strengths and weaknesses)

i.          Jury verdicts or similar settlements

j.          Current demands and last offer

k.         Supporting exhibits–excerpts from depositions or records

11.  Status Report to Client:  Advise the client of the mediation date and provide him/her with a copy of the mediation statement for input and comment.

12.  Who Will Attend:  Determine who will be present at mediation. The attorney should be ready to address any potential problems this might create for the mediation process, and decide whether it could compromise the confidentiality of the attorney-client relationship. Sometimes friends or family members who are not parties may want to attend. Your attorney needs to be ready to address problems this may create. Family members or friends can try to hijack the negotiations or usurp the attorney’s role. It is best to have this cleared up in advance.

13.  Who Will Speak:  The attorney will decide whether he wants the client to speak at mediation. Adjusters seldom attend depositions and may never have met your client prior to the mediation.  If your client is well spoken, the attorney may allow him to make a brief statement regarding how his life has been affected or changed. Such a statement can go a long way in educating the adjuster that your client has sustained a real and viable injury, and that your client will make a good appearance at trial.

14.  Explain the Process:  The attorney should speak with the client in advance, and discuss exactly what will happen and how he should behave.  A client needs to avoid emotional reactions or attacks on opposing party or counsel, even if they are rude or abrasive. The attorney shoud remind the client that he loses the ability to persuade once you offend the other party or their representative. People are much more likely to want to reach a resolution if they do not dislike the other side.

15.  Explain Confidentiality:  Make it clear to the client that the attorney will guide what is disclosed in joint sessions. The mediator is not there as a friend or as his attorney. You do not want to disclose information to the mediator without a good strategic purpose. Mediators have one goal… to settle the case. If your client reveals all of his insecurities or weaknesses, then the mediator will use this information as a tool to move your side towards settlement. On the other hand, the mediator can provide an effective “devil’s advocate” and help your client honestly appraise his case and its value. Also, remember that while an opposing party cannot ask your client about what was said in mediation, they can make derivative use of information disclosed at mediation, and follow up on leads learned during the mediation process. In fact, some attorneys will use mediation as a tool for focusing their discovery.

16.  Discuss Settlement Value Ranges:  Prior to mediation, the attorney should discuss the parameters of an appropriate settlement with the client, but encourage him to be flexible should new information be revealed during the mediation.

17.  Prepare Your Client:  Make sure you remind your client of the date, time and place of the mediation the day before the mediation. Nothing is worse than your client failing to show up! I always provide my client with a map and directions to the site at the time I send them my mediation statement. I would also provide the client with the attorney’s cell phone number (if he is okay with that), along with the telephone number of the mediator you are using. Also, discuss with your client the importance of dressing appropriately for the occasion. Remember, you only get one chance to make a first impression!

The attorney should explain the mediation process and let the client know what to expect, including the unexpected. He will also discuss the importance of being flexible. Cover all of the ground rules concerning his participation outlined above. Go through the goals of the mediation. Your attorney’s goals should include not only settlement, but obtaining a better understanding of your case’s weaknesses and strengths, as well as the costs and risks of going to trial if you are unable to reach a settlement. If the attorney is unable to reach an actual dollar settlement, then he/she may want to consider negotiating a high-low agreement to reduce the risks to both sides of a crazy verdict.

18.  Outline Your Opening Statement:  The attorney will introduce himself and his clients, express his optimism and willingness to reach a fair resolution, and outline the basis for the strength of the client’s position. Address any known weaknesses that the other side will likely raise to show he are not afraid of them and will be able to effectively handle them at trial. If you are using a PowerPoint presentation or other electronic aids, make sure they work properly and have no glitches.

Richard Cook graduated from Purdue University in the Economics Honor Program in 1979 and obtained his Juris Doctor degree from Valparaiso University School of Law in 1982. Following law school, Cook served as a federal law clerk in the U.S. District Court for the Northern District of Indiana, Hammond Division. In 1984, Cook began working as Deputy Prosecutor for the Lake County Prosecutor’s Office and from there, served as Assistant U. S. Attorney for the Northern District of Indiana, South Bend Division. There he handled a number of complex criminal matters and jury trials.  While there, Cook received the Chief Postal Inspector’s Special Award, and a letter of commendation from the U.S. Attorney General for his work prosecuting a major money order fraud scheme being perpetrated out of the Indiana State Prison system. Since leaving the U.S. Attorney’s office in 1989, Cook has focused primarily on civil work.  Cook is also a member of the ITLA, Indianapolis Bar Association and the ABA. Cook writes a blawg on litigation topics at http://www.the-barristers-toolbox.com.

Mr. Cook is a member of the law firm of Yosha Cook Shartzer & Tisch located at 9102 North Meridian Street, Indianapolis, IN 46260, Telephone: 317-334-9200; Fax: 317-566-3578; email: rcook@yoshalaw.com.


Again, some of these tasks are best handled by the attorney, but there is plenty of room for a wildly skilled paralegal to assume a meaningful role, become the world’s best file organizer, issue preparer, argument crafter, and file wingman the attorney has ever seen! Plan, prepare, and help lead your supervising attorney into the mediation ring, my friends.

Be sure to check back on Friday, when we’ll be sharing some tips on how to de-stress. It’s not like any of our readers need tips on a topic like stress, right? (Yes, that was a rhetorical question if you are a paralegal).  We’ve already saved you a seat in front of the TPS screen!

See you soon.