How does one prepare for a mediation? If you are a trial lawyer, then perhaps no different that you would for trial, with significant preparation, analysis, involvement of experts such as settlement planners, organization of a mediation memorandum, consultation with fellow trial lawyers on value of the case, focus groups and more. Whether it’s a zoom mediation or in person, a mediation is a significant step in the lives of the people affected by catastrophic personal injury, and if you are a plaintiff in a lawsuit, or the loved one, this day can mean a lot to you. I guarantee that if you’ve never mediated before, as an individual plaintiff or family member, you are going to be anxious. You will likely have spoken or met with your trial lawyers multiple times, and talked about a range of issues, from future healthcare, liens, Medicare and Medicare set asides, your social security disability income(SSDI) or your Social Security Income(SSI), your ability to work, your family dynamics, your relationships, and how you feel about the litigation itself.
In my career I have been professionally involved in over 2000 mediations on cases valued from $1,000,0000 to $150,000,000. Cases that are pre-suit, like many of the sexual abuses cases today, to cases that have been tried, went on appeal, been affirmed by a state court of appeals or a supreme courts of a state, and even some who have gone to the US supreme court, like the Bank of Markesi case. A mediation in my opinion is the single greatest process for a family to fully explore how they feel about their litigation, to put some boundaries around why they are litigating in the first place, what they hope to achieve legally, publicly, privately and financially, and to have a trusted environment where this discourse, discussion and evaluation can occur. All with the advice of your plaintiff lawyers, expert settlement planners and mediator. A mediation is a confidential, private, voluntary process. Parties to mediation are not bound to settle, and the information exchanged during the day of a mediation cannot be used at trial.
A mediation is typically scheduled for an all day event, and we have had many go past midnight with multiple parties flying in to make the process work. However most mediation are conducted from 9-6pm, and in actuality are long boring days for some families. The long hours are unexpected for some, but it is time well invested to come rested and prepared to process and think about your personal situation, and to learn the good, bad and ugly about your lawsuit. Many families have been in litigation for so long, that they resign themselves not to hope, and often times are ill prepared to face the real closure and finality if settlement is in actually achievable. From my perspective, it’s a difficult thing for a family to get all worked up and mentally ready to engage in the process, because doing so actually means they start to think it may resolve, or that they hope it may resolve. This emotional roller coaster for families is something that trial lawyers should understand fully, and take time to talk to their clients, and explain that in some ways it’s like a championship game. You do everything you possibly can to prepare, but if for any reason it doesn’t happen, you know in your heart you were ready.
What does it take to successfully mediate a catastrophic personal injury case? For starters, a brilliant and deeply experienced legal team. What firm you select to represent you is likely the biggest and most important decision of your lifetime. I’ve seen thousands of cases represented by the best lawyers in the country, and I’ve also seen really good people with great cases represented by lawyers in over their heads.
If there were a mediation checklist or settlement checklist it would look something like this:
- Fully briefed on the legal aspects of the case with an understanding of your chances of success at trial, and how long that process will take, to include an appeal.
- Write down your goals for the litigation, and the things that are most important to you and your loved ones. These will translate into a settlement strategy that you can easily articulate to your trial lawyer and settlement expert. Examples may include making the defendant publicly apologize, or to make a donation to an important cause or charity; purchasing a home or being able to bring your loved one home from a facility; replacing lost income and healthcare benefits to insuring that your children are properly taken care of after you are gone.
- Come to the Mediation with realistic expectations that are grounded in what you will need to live in dignity for the remainder of your life. Understand how taxes will affect any settlement, and what effect taxes will have on future earnings.
- Come to the Medication prepared, well rested(if possible).
- Evaluate who should be at the mediation. If you are the only plaintiff, but are married, or in a significant relationship, evaluate and speak to your legal team about who best to attend. The dynamics of a personal relationship can make it extremely challenging for people to process and make decisions if there are exacerbating circumstances within the relationship.
- Understand that money can grow, and work with your settlement planning expert to understand the power of money, and it’s ability to grow safely over your lifetime, and provide for many of the things you will likely need, and that you are expecting from the resolution of your lawsuit.
- Be prepared to be disappointed, in both the process and the numbers thrown around all day. Just like litigation, mediations are messy and complicated. 90% of the time and effort is typically aimed at getting the defendants and their insurers to respectively understand their positions, and to offer money as part of the process.
- Be prepared to have your case settle. At least 35% of mediations settle on the first try.
- Make decisions from a basis of confidence. Confidence that you are doing the right thing, that the money is enough to take care of you and your loved ones for your lifetime, or confident that it’s the most money you’ll ever see from this lawsuit. Confident that forgoing settlement is best, and heading to trial is in your best interests. Many cases fail at mediation and end up resolving days before trial or once a trial has begun. 99.2% of good cases eventually settle.
- Appreciate how a single lump sum of money can translate into long term financial security if planned properly, but that like with all things, money can bring unexpected challenges, pain and problems. And remember, 90% of people who take their settlement in cash without a plan in place first have no money within a few years. This is based on our extensive experience with Billions of dollars paid in settlement.
As one of the most experienced and trusted settlement advisors in the country, we attend mediation for no upfront cost, and leverage our expertise to the benefit of the plaintiff an their lawyer, and we become part of the team that is in place before, during and after mediation. Trial lawyers recognize that it is essential to have an expert settlement planner working with families prior to a mediation. Watch our videos from prominent trial lawyers here. No matter your situation, if you would like a free consultation regarding an upcoming mediation your are scheduled for, please feel free to call me personally at 716.864.8917.
A West Point graduate where he served as captain and military aviator, John Bair continues his commitment to our country through his efforts within the settlement planning industry. He has represented families of victims lost in the Flight 3407 crash, offered pro bono services to the families of 9/11 victims and drafted the first consumer protection bill for plaintiffs (H.R. 3699).