A Guide to Preparing for a Personal Injury Mediation for Claimants, Defendants, Solicitors and Insurers Page 1 Contents : Timing the Mediation 3 Who should attend? 3 The decision maker 3 Solicitors 4 Counsel 4 The Venue 4 Rooms 4 Refreshments 4 Allocating Time 4 Risk Analysis 5 Technical analysis of the claim 5 Decision tree analysis 5 Further evidence 5 Your opponentʼs position 5 Negotiation Strategy 5 Minimum Requirement 5 Other Factors: 6 Position Statement 6 Purpose 6 Opening Statement 7 Mediation Bundle 7 Costs 8 Speak to the Mediator 8 Page 2 Timing the Mediation I think this is a relatively straightforward issue although. Ask yourself the following three questions and if you get a positive answer to each one then mediate. • Does your client want to settle? Your client may not want to settle the claim at this stage. They may want a precedent ruling although this is less common in personal injury litigation than say commercial litigation where a client may have the same disputed contractual term with hundreds or thousands of customers. More likely a claimant may be awaiting the outcome of some surgery or other treatment before finalising the claim. • Are you ready to negotiate? This is not the same question as “are you ready for trial?” The vast majority of personal injury claims are settled without trial and without being anywhere near ready for trial. To negotiate you need enough information about the case to be able to advise your client on any offer to settle that you or the other side might make. • Have other attempts at negotiating broken down? Mediation is never going to be used in the majority of personal injury cases because it is not necessary. Most cases settle through the parties making responsible offers as soon as they are able to do so. Therefore if you have not yet made an offer, or you are awaiting for a response to an offer then pursue that first. If one side is refusing to make an offer (eg a defendant denies liability) or the latest offer has been rejected with no counter proposal then negotiations have broken down and you should try mediation - your only other option is trial. Who should attend? The decision maker That means the claimant (or litigation friend) on one side. The defendantʼs decision maker may be the insurance representative but could be another person if the defendant is self insured. Insurers often attend but with a limit to their settlement authority. Mediators always ask for assurances that they have sufficient authority to settle but despite what they are told this is not always the case. If the insurer has to attend with a limited authority then it is essential that they can contact somebody at any time to request any necessary extension to that authority. Page 3 Solicitors It is not a requirement for a party to be legally represented at a mediation but I always recommend that they are - you are after all hoping to reach a legally binding solution by the end of the process. Preferably the solicitor who is most familiar with the case will attend but firms may have specialist mediation advocates. Counsel Opinions differ on whether or not it is advisable or advantageous to have counsel attend. It is an important question because of the extra costs involved. Barristers are of course skilled advocates but mediation is essentially about negotiation not advocacy and negotiation is more the stock-in-trade of solicitors than barristers. If your counsel is a skilled negotiator and can bring something to the negotiation that the solicitor can not bring then counsel should be instructed. It is essential that all legal representatives attending understand that mediation is not a trial or an adversarial process but rather an opportunity for both sides to negotiate a settlement. The Venue Rooms The venue for the mediation must have one private room for each party (and as an optional extra a small private room for the mediator). One of the rooms should be large enough to host joint meetings of all the parties. I ask for rooms to be equipped with a flipchart. Make sure that all the rooms are large enough for the number of people who will be using them. They may be sitting in there for a long time. Make sure they are well ventilated and take into account disabled access when booking the venue. Refreshments Hot and cold drinks should be readily available throughout the session and if the mediation goes through lunchtime ensure sandwiches can be provided or ordered easily. Allocating Time Those attending must allow sufficient time for the mediation. It can be very disruptive to announce that you have to leave in ten minutes to catch a train or a flight. Wherever possible allow for the mediation running over. It is far better to overrun by a few hours than to give up the opportunity for settlement. Page 4 Risk Analysis Technical analysis of the claim Carrying out this analysis together with preparing a negotiation strategy (see page 6) are essential if you are going to give the mediation the best chance of resulting in a negotiated settlement. The minimum requirement is to consider the best and worst case valuations of your claim. Ideally you will consider each of the uncertain factors - liability, causation, contributory negligence, valuation etc and have an estimate of the probability of each outcome. You will need objective criteria to justify your positions if you are to persuade the other side to change their views. Decision tree analysis If you are unfamiliar with decision trees do not attempt to learn how to use them in the middle of a mediation! Have a look at my article from APILʼs PI Focus here for an introduction. For those of you who use decision trees much of what you did in the technical risk analysis will be fed in to your tree. Does your client understand the decision tree analysis? Have you considered carrying out the same exercise from your opponentʼs point of view? Further evidence I once had a mediation where experts had met but not yet prepared their joint report. How was either side expecting to negotiate when they did not know the conclusion of this report? Make sure you have the evidence you need to advise on any offer - thatʼs not the same as being ready for trial. If you need something from your opponent tell them itʼs production is a condition of the mediation going ahead and tell the mediator. Far better to postpone a mediation than to go ahead without the information you need. Your opponentʼs position Have you considered the case from your opponentʼs view point. Are there any special features that apply to them but not to you, costs issues, witness availability etc.? Negotiation Strategy Minimum Requirement Page 5 A personal injury mediation is an assisted negotiation. You therefore ought to have a negotiation strategy prepared before the meeting. The absolute minimum is to know: • The best case outcome and the chances of obtaining that (see your risk assessment) • The worst case scenario and the chances of it happening. Other Factors: • Will you make the opening offer? • How much will your first offer be? • How will you deal with “low ball” offers from the other side? • How will you deal with your opponent making repeated minor improvements on offers (“salami slicing”)? • What will you do if as Claimant you receive a costs inclusive offer from the Defendant? • If contributory negligence is an issue are you prepared to settle on a figure without specifically agreeing what the reduction for contributory negligence is? • What is your “walk away” point - but be flexible and ready to alter this if new information received during the mediation demands re-assessment. • What are the costs if you lose the case and how are they going to be paid? • How will you deal with the weakness in your case? • What will your immediate next step be if negotiations fail? Position Statement Purpose The other side has taken a position or stance prior to the mediation. They are unlikely to change that position unless you give them cogent reasons for doing so and persuade them that it is in their interests to settle the claim now rather than continue the litigation. The position statement is the first step in that process. You need to set out reasons why your opponent should shift itʼs stance. You will highlight the strengths of your case and the weaknesses of theirs. You will provide clarification for points you feel the other side has not clearly grasped or understood. Position statements are commonly used in mediation. Typically each side will prepare one and exchange it with their opponent and send a copy to the mediator. Optionally parties may send the mediator an additional confidential statement with further information for the mediatorʼs eyes only. Page 6 Your opponent and the mediator will be familiar with the case so donʼt just regurgitate the contents of the pleadings. Ask yourself what the reader will gain from reading your document? If the answer is nothing then it probably isnʼt worth preparing. Format There is no prescribed ideal length for a position statement - it should be concise and focused on the purposes set out above. It may run into a number of sides of A4 but if you can say what you want to say in one sheet of A4 then do so. It can be in whatever form you want - find a style you are comfortable with and stick to it - remember mediation is an informal and flexible process. Opening Statement Mediations commonly start with a joint meeting of all the parties where each side is invited to make an opening statement. This can be used to elaborate on the position statement. There is no obligation on any party to make an opening statement. Claimants have to decide if the legal representative, the claimant or both will deliver the statement. A claimant may well want to take advantage of this “day in court” moment to speak directly to the defendant to explain precisely what impact the injury has had upon them. As claimantʼs representative do you believe the claimant will give a straightforward account of the accident and injuries? If so this may well have a positive effect on your opponent and their attitude to settlement. It is perfectly acceptable to read from a prepared statement and probably wise at least to have a few notes of what you want to say. Defendants may use the opportunity to speak sincerely to the claimant to empathise with the suffering caused by the injuries - and where appropriate - deliver an apology. Once again this can have a marked impact on the prospects of settlement. Both sidesʼ legal representatives can take the opportunity to speak directly to the opposite party. They can deliver a legal opinion which contradicts the advice the opponent has received from their own representative, the purpose as always being to give the opponent a reason to shift itʼs position. Mediation Bundle Mediation is not a trial and you do not need a full trial bundle. You should agree with your opponent and the mediator what documents should go in the bundle and prepare a joint one to save time and costs. Deliver this to the mediator as far ahead of the mediation as possible. This will enable the mediator to identify and work on any issues ahead of the day and increase the prospects of a negotiated settlement. Page 7 Costs Prepare an up to date schedule of your costs to date (including the cost of the mediation) and your best estimate of costs to trial. Is there any reason why you should not send these to your opponent ahead of the mediation? By doing so you increase the likelihood of settling costs as well as damages on the day. A Defendant may not be prepared to settle damages without sight of the Claimantʼs costs. They may insist that no deal will be done unless costs are also agreed. There are no strict rules about mediation procedure so Defendants are perfectly entitled to take this approach if they desire. Claimants can take steps to prevent this derailing a settlement by having costs details to hand. Speak to the Mediator Finally remember your mediator is not a judge. The whole process is very flexible. If you or our client have any questions before the day call the mediator, they will be only to happy to assist. Page 8
