Thursday, October 22, 2009

Preparing for Mediation

I was reminded recently by my San Francisco colleague, Michael Carbone (Mediation Strategies Web Log), of the importance of thorough preparation prior to mediation. See "Effective Preparation," posted September 26, 2009. In that post, Michael reminds plaintiffs and their attorneys that "[i]f [they] will be negotiating with an insurance carrier or other institutional party who must complete an internal evaluation in advance of the mediation, be sure to provide them with all of the information that they will need."

This advice is especially important if there are factual disputes on the extent of damages or their causal relationship with the events giving rise to liability. Typically, such issues are going to be the subject of expert testimony — usually medical experts, in the case of personal injury — if the case doesn’t settle. Unless the Insurance carrier for the defendant is presented with hard and persuasive documentary evidence of what that testimony is going to be, expect the claims rep and defense counsel to negotiate on the basis that such evidence is unlikely to be forthcoming at trial.

Insurance carriers and defense attorneys know that you have the burden of proof on these issues, and they expect you to demonstrate how you plan to meet that burden before they will write a substantial check. See my post of September 3, 2009, entitled "Little Blank Spaces." Don’t expect to persuade the other side at mediation, e.g., that your client "probably" has a permanent disability caused by the accident at issue unless you have a medical expert’s opinion to back it up.

I know that doctors cost a lot of money and sometimes they are hard to deal with, etc., etc. I also know that in many cases, experienced counsel can guess pretty well from the medical records what the doctors are going to say about fairly routine injuries. And I know as well that it can be frustrating to have to pay several hundred bucks to get a doctor to put in writing what to you may seem obvious. But if you insist on avoiding that expense, be prepared to have the value of your client’s case discounted considerably by the other side. And your chances of changing their perception during the course of a mediation are slim indeed.

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