The current trend in civil litigation matters, especially with more generous, headline grabbing jury verdicts coming down in the time since the pandemic, is that most cases are being resolved by way of nonbinding mediations. Experience shows that taking the following steps in advance of mediations and at mediations can improve one’s chances for a favorable settlement of a matter.
Trust Your Selected Mediator
Whether your mediator has a background as a plaintiff’s attorney or an insurance defense attorney, or both over the course of their career, every mediator worth their salt understands the need to approach a mediation from an entirely neutral perspective. It can be safely stated that most, if not all, mediators take pride in their ability to set aside any preconceived notions with respect to litigation matters and thereby offer the parties a balanced view of the pros and cons of the claims and defense presented.
And so once you have vetted and selected your mediator, you should trust your mediator to conduct a fair review of the file in order to assist all parties in working toward an amicable resolution of the matter.
Zoom Is Just as Effective
In the time since the COVID-19 pandemic, the use of remote meeting platforms, such as Zoom, has become the norm for mediations and arbitrations. Experience advises that virtual mediations are just as effective as mediations that are held in person.
The use of remote means to complete meditations also has the added benefit of reducing the stress on the parties involved. Plaintiffs still get to have their day in court but are able to do so from the comfort of their own home or their attorney’s office. Claims professionals participating remotely will have avoided the stress and expense attendant with being required to travel to be present at an in-person and may thereby be in a more comfortable frame of mind as the negotiations begin.
Whether a mediation is set to take place virtually or in person, the key to your success at a mediation, regardless of the format, is to be fully prepared to present your client’s case at the mediation.
Be PreparedOn the plaintiff’s side of a mediation, the day of the mediation is usually going to turn out to be that client’s one day in court. On the defense side, the mediation is a day for the carrier to try to close another file by way of a reasonable settlement and thereby save on further defense costs. As such, whether counsel is on the plaintiff’s side of the matter or the defense side of the matter, with the attorney serving as the mouthpiece for the client, the client deserves counsel that is fully prepared and knows the file inside and out.
Accordingly, in preparation for a mediation, counsel should expect that opposing counsel will be perusing every page of every document in the file in an effort to prepare for the meeting. As such, the file should be equally thoroughly reviewed on your own side as you never know what opposing counsel may find in the deepest corners of the file that could hurt your client’s case.
For example, a gold mine in this regard includes physical therapy notes in which there is typically a treasure trove of information that could help or hurt either side of the case. It also is advisable to peruse the transcripts of the depositions of the parties and witnesses completed in the case in order to be reminded of the overall tone of the case as you prepare to negotiate on behalf of your client at a mediation.
Perhaps one of the most important parts of preparing for a mediation is immersing oneself into the thought processes of opposing counsel in order to fully anticipate the arguments that opposing counsel will make to the mediator. What will opposing counsel’s arguments be on the liability issues? What will opposing counsel’s arguments be on the prior medical history or causation issues? What will opposing counsel argue relative to the type and extent of the injuries and economic damages alleged? Write down an outline of responses to each of these anticipated arguments so that you are prepared to quickly counter the anticipated arguments from the opposition.
Part of being fully prepared for a mediation should also include a conference with one’s own client or insurance company representative prior to the mediation in an effort to determine what expectations exist and, if necessary, to begin to temper or manage such expectations.
Fully preparing for the mediation will serve to avoid surprises for counsel or the client and may make the process move faster given that you will have all of the necessary information to negotiate at the forefront of your mind and at your fingertips.
Be Sure to Exchange Submissions With the Other Side
In addition to planning to draft a mediation memorandum that is concise and to the point, one should also plan to share that memorandum and the supporting exhibits with the other side. Nothing may further the chances for success at a mediation more than sharing one’s submissions with the other side and requesting that the information being exchanged be shared with the opposing party or the opposing insurance company in advance of the mediation.
It is always wise to draft a mediation memorandum that pointedly, but respectfully, emphasizes the weaknesses of your opponent’s case. Soften the harshness of the presentation of information that is detrimental to the other side by phrasing it in terms of the real world impact of that evidence by noting how a jury may react to that information when it comes out at trial.
To add to the credibility of your submissions, it may also be wise to suggest that you acknowledge and understand the issue with your own case while still attempting to minimize the importance of those difficulties.
The mediation memorandum should also outline the reasons that the opposing party should desire to have the case amicably resolved as opposed to litigated further or tried. Never hesitate to point out that a settlement will save time and expenses and will avoid the uncertainty of a jury verdict.
In terms of supporting exhibits, only provide the mediator with the most pertinent liability documents, photographs, medical records, and economic damages supports necessary to drive home the salient points of your case or defense. A documents dump of voluminous records will be frowned upon by the mediator and will only serve to increase the expenses of the mediation given the extra time it will take for the mediator to wade through the documentation. In this digital age of litigation, the symbolism attendant with a large binder of documents that a big binder equals a big case is no longer relevant.
An attorney’s credibility will be enhanced by that attorney taking the time to pinpoint the most relevant documentation to present to the mediator in advance of the mediation. Should there be additional, more detailed documentation you might wish to share with the mediator, you could always have that ready to show the mediator those documents at the mediation.
Also know and keep in mind that, given that the Rules of Civil Procedure pertaining to discovery are designed to provide for full disclosure and to prevent any surprises at trial, there will likely be no secrets on how you will likely present your case at trial by the time you get to a mediation. As such, there is really no reason not to share your mediation memorandum and supporting exhibits with the other side. As noted above, the sharing of your submissions with the other side will not only highlight to the other side the difficulties they may face with their case, but will also let the other side see and know that you are ready, willing, and able to go to bat for your own client at trial if it comes to that.
Certainly, if you are going to instead keep your mediation memorandum and exhibits confidential from the opposing side and only submit them to the mediator, be sure to give the other side the professional courtesy of a heads up in this regard before the other side submits their materials to the mediator. Otherwise, you could look petty, you may irk the opposing counsel and party, and you may cause the mediation to get off to a bad start by creating negative feelings which, in the end, could hurt or delay your client’s chances for a favorable outcome at the mediation.
Avoid Posturing for the Sake of Posturing
Posturing for the sake of posturing at a mediation is never advisable. Everyone involved in the proceedings can easily see posturing for what it is, i.e., the taking of a stance that bears no reasonable resemblance to a fair and practical evaluation of the case presented. The act of presenting an entirely unreasonable offer or demand at a mediation really serves no purpose and hurts the credibility of the attorney advancing such positions to the detriment of that attorney’s client or insurance carrier.
Knowing where your endgame may be in terms of a settlement figure, the better approach at a mediation is to make measured moves in the negotiations that signal a willingness to negotiate while still remaining firm on one’s belief as to the proper number for a settlement from the perspective of your client.
In the end, each side should work with the mediator in an effort to tap out the other side’s complete settlement authority and get to the number that perhaps no one is completely happy with but is more than content with to call it a day in order to avoid additional time-consuming and expensive litigation along with the uncertainty of a jury verdict.
Daniel E. Cummins is the managing attorney at Cummins Law where he focuses his practice on motor vehicle and trucking liability cases, products liability matters, and premises liability cases. He also serves as a mediator for the Federal Middle District Court and for Cummins Mediation in these types of cases. He is additionally the sole creator and writer of the Tort Talk Blog at www.TortTalkcom.Reprinted with permission from the June 4, 2025 edition of the "The Pennsylvania Law Weekly © 2024 ALM Global Properties, LLC. All rights reserved. Further duplication without permission is prohibited, contact 877-256-2472 or asset-and-logo-licensing@alm.com.
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