A. Pre-suit Mediation

1. Rationale and Advantages

   The sooner you can get your personal injury case settled for a "fair and reasonable" amount, the better off both you and your client will be, and the happier your client will be. Similarly, the sooner an adjuster can get his/her file closed for a "fair and reasonable" amount, the happier they are -- and their supervisor and their claim manager. In many Insurance companies today there is a push from the home office to utilize ADR (Alternate Dispute Resolution) for early, even pre-suit mediation, or other forms of Alternate Dispute Resolution (eg. Arbitration - binding, non-binding, high-low).

   Pre-suit mediation is particularly effective where your client makes an especially good appearance and can communicate well how the injury has affected their life. This allows the adjuster to see first hand the intangible, but very real plus to your side of the case. It also gives your client a substitute "day in court".

   Even if the case is not resolved, you will have educated the adjuster, and probably his/her supervisor about the strengths of your case, non-filtered through the eyes of defense counsel.

2. Selection of Cases for Early Voluntary Mediation - "A Challenge and an Opportunity"

3. Approaching the other side(s)

   You can approach the claims person directly regarding the option of pre-suit mediation, or you can utilize the services of a neutral Mediation Service to approach them for you. Often the latter may be preferable, especially where the mediation service has mediated previously with the carrier and/or has set up a mediation program within that carrier's office.

4. Preparation tips

   This is a chance to have the undivided attention of the claims person. Be prepared to clearly and graphically present the strengths of your side.

5. Negotiation strategies

   Leave yourself "room" and to "test the waters", but make your initial demand around the upper ranges of what you realistically would expect on a "good day" at trial. Out-of- range demands can tend to turn off the claims person.

1. Rationale and Advantages

   The advantages to early in-suit mediation are similar to those of pre-suit mediation. In addition, court-ordered mediation before trial is probably a certainty. In addition, an early in-suit mediation can operate as "cheap discovery" for both sides and/or help both sides focus on "necessary" discovery to facilitate earlier resolution at minimal cost.

2. Timing considerations

   Completion of basic discovery is usually helpful, but not necessary. Keep in mind the "interests" of defense counsel. Evaluate what you think the other side will need to settle your case and provide them with all the necessary information.

3. Preparation tips

   Prepare your client to "talk". Prepare materials/documents to be presented at mediation early and provide to defense counsel with a request to forward it on to the claims person in advance of the mediation. Discuss who will attend the mediation from the carrier with defense counsel. Handle "authority" issue carefully.

4. Negotiation strategies

   Casual "conversations" with defense counsel about your "real" range of settlement will often come back to haunt you in a mediation. Leave "room", but don't start too far out-of-the- park. Be prepared to stop and arrange to re-convene if the situation warrants.

C. Court Ordered Mediation

1. Florida Rules of Civil Procedure 1.700 et sec. and the 7/1/94 revisions - "... full authority to settle up to the plaintiff's last demand or policy limits, whichever is less, without further consultation" 1.720 (b)
   U.S. District Court-Southern District-Local Rules 16.2- Court Annexed Mediation - "...with full authority to negotiate a settlement". and, the Form "Order of Referral to Mediation" "...with full authority to enter into a full and complete compromise and settlement is mandatory."

2. Recent case law - Physicians Protective Trust Fund et al. v. Overman et al. 19 Florida Law Weekly D1014 (5/4/94)
   Western Waste Industries, Ind. of Florida et al. v. Achord 19 Florida Law Weekly D425 (2/25/94)

3. Timing and scheduling - 15 days to choose a mediator. Federal - 60 days before trial. Florida - Within 60 days of the Order (or court order), completion within 45 days. (by order of stipulation).

D. Follow-up Mediations/Continuations

1. Analysis of change in position/circumstances

   After mediations, if the case doesn't settle, don't forget to consider a continuation of the Mediation.

2. Persons to attend

3. Timing considerations

E. Post-trial/Appellate Mediations

1. Rationale and Advantages

2. Timing - While post trial motions are pending? After initial briefs are filed?

3. Persons to attend - Appellate counsel? New level of claims person?

1. Conference with client.

   Educate your client about mediation. Let them know about the negotiations that will be involved. Talk with them about what verdict ranges and/or settlement ranges to expect. Talk about appearance, clothing, hair cut etc. Your client WILL be evaluated by the claims person.

2. Know what you have and what you want

3. Prepare your client to "talk"

B. Presentation

1. Style

   "Coming on Strong" or the "soft" touch.

2. Exhibits and demonstrative evidence

   A mediation is a great time to let the claims person know what you have ready for trial. They can be impressed just as a jury can. Do not let the opportunity slip by to make an impression.

3. Letting your client talk - yes or no?

4. Getting the other side(s) to listen

   If someone is mad, it is very difficult for them to listen.

5. Deal with the issues/avoid personalities and grudges

C. Negotiation

1. Style

   Plan ahead. Analyze who is negotiating on the other side. Anticipate potential ranges of negotiation. Give consideration to negotiating with an initial emphasis on strengths from your side, switching to conciliation as negotiations progress.

2. Goals

   Discuss and analyze your goals with your client. Anticipate the potential for the first mediation being mostly an "education." Is the goal to settle soon, or can you and your client afford to wait? Is it only a question of money?

3. Timing

   Be alert to what kind of movement will inspire movement from the other side. Consider saving room for a final compromise. Plan ahead your anticipated movement, but remain flexible as the negotiations progress.

4. Using the mediator

   The "message" you create for the mediator in the private caucus is the "message" that will be conveyed. Your mediator is hearing both sides and can give you input as to what to expect from the other side. Give the mediator an idea of what might be acceptable, as the mediation progresses. Watch out for expressions to the mediator of "bottom line" too soon - it could prompt a premature Impasse. Potentially offensive material is often better communicated through the mediator, rather than directly to the other side. You do not need to be totally "honest" at all times with the mediator.

D. Miscellaneous

1. "Philosophy" of Mediation

   In its pure sense, Mediation is an opportunity for those who are in disagreement to communicate with each other and to focus on their options for conciliation in an informal environment. Compromise is a key element. Creating and maintaining an atmosphere for objective analysis of areas of agreement and disagreement in a non-adversarial environment is also important. The neutral mediator acts as an intermediary to encourage those in disagreement to focus on working toward a workable and acceptable agreement that is preferable to continuing with the dispute and an uncertain outcome.

2. Get the Agreement in writing

   The court rules require that the Agreement be reduced to writing. Problems do arise if the Agreement is not reduced to writing.

3. Creative solutions

   Although there is seldom anything more than money involved, be alert to other potential areas of agreement/settlement. In a complex case, mediated early in discovery, agreements to limit discovery and reconvene can save months and dollars in unnecessary discovery. Is there anything else of value your client would consider? - eg. a free cruise, restaurant vouchers.

4. Creative conferencing.

   Consider a request to meet privately with the adjuster, or the other attorney(s). If individuals are involved, they can meet privately or with the mediator. Any combination of participants that might further settlement can be suggested.

5. Summary of Practical Tips for Mediation.

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