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Preparing for Mediation in A Wrongful Death Case

May 28, 2013

Every personal injury case and every plaintiff are different. Generally speaking, however, there are five main areas of mediation that every plaintiff should understand before proceeding.

Why the Case Is Being Mediated

Mediation has become so common that it often is simply a routine aspect of litigation, but it is an increasingly important part of the litigation process. The purposes of mediation is for both parties to attempt to reach an acceptable settlement, to preview some of the likely issues that will arise at trial, and to determine with some clarity how disparately the parties view the case. In the simplest of terms, the case is being mediated so the parties can see what is being fought over.

The Benefits of Mediation

There are numerous benefits of mediation for the plaintiff. The most important of which are as follows:

1) Mediation is a less expensive way than trial to resolve a lawsuit. Mediation likely will result in a higher net settlement, after accounting for payments to subrogated parties, expert witness fees, and the time needed for ongoing discovery and trial appearances. This is especially true when the plaintiff considers that her time is valuable and that the demands of ongoing discovery can have a significant impact on the plaintiff's schedule and emotional health.

2) Mediation offers a rapid conclusion to the case. Plaintiffs often become frustrated, fatigued, and disenchanted after the journey through trial discovery and motions. A settlement at mediation brings a sense of closure for the plaintiff, who can move on with life and take the focus off litigation. Moreover, once a case has been settled at mediation, there is virtually no risk of an appeal. Unfortunately, the same is not true of a trial verdict because trial verdicts are often appealed, which is another lengthy process that the Plaintiff must endure.

3) Mediation offers the plaintiff some degree of control and predictability. The litigation process is amazingly bereft of client involvement. At mediation, the plaintiff is an active participant and has real power in effecting an acceptable outcome. In fact, the plaintiff's power at mediation arguably is greater than at trial, where the plaintiff will be subjected to cross-examination and judged by a panel of complete strangers whose verdict is impossible to predict. The plaintiff also retains the power not to settle the lawsuit at mediation.

What Will Happen at The Mediation

Typically, mediation will have the following cast of characters, who can be introduced to the plaintiff like this:

Mediator. The mediator is an attorney. He is impartial in this case. His job is just to help get the case settled and give his feedback to the parties if asked. He will focus on the damages in your case, and so we can expect to spend some time talking about lost income and the loss of services. The mediator will start the mediation by introducing all the parties and talking about the process. Then he takes the other side into a separate conference room and returns to talk to us in more detail. He will ask you some questions, and since everything you say to him is confidential, you should be open and honest.

Insurance Company Representative. A representative from West Bend insurance company will attend the mediation. She has assured me that she has full authority to negotiate and that she will be the person making the final decision on how much to pay to try and settle your case. She is about your age and has two young children. I am hopeful that she will be fair.

Plaintiff's Attorney. I will be with you for the entire mediation. If you have any questions at all during the process, we will have the time to stop and talk through them before moving forward. If you wish to speak to me in private, the mediator will give us that option at any time during the mediation.

Potential Pitfalls for Plaintiffs

It is very important that you understand that the end result of mediation is that everyone leaves unhappy. The very nature of mediation is compromise, which often equates with some measure of defeat. It is natural for a plaintiff to feel a sense of let-down when a case is settled. Before you decide to settle, you and I will talk extensively so that you do not ever doubt your decision to settle (or not to settle) in the future.

A second potential pitfall for a plaintiff at mediation is becoming defensive during the process. You are going to hear challenges to the damages in your case discussed at length. A mediator usually will spend time with each party discussing those challenges. Remember that when the mediator is in the other room talking with the defendant, the defendant is hearing about the negatives in its case as well. You should not take personally much of what is said at mediation. The challenges of winning a case at trial sometimes have little to do with the plaintiff, and judgments about the case are not typically judgments about you personally. You need to understand that cases are won and lost based on the facts and juries, and not always on what is fair. The underlying theme in all of this is that you should remain patient and calm. Mediation can be a long, tedious, tiresome, irksome, and unnerving process.

Ways to Prepare for The Mediation

One simple way for you to get ready for the mediation is to think of a handful of anecdotes that you can share with the mediator about how Mike’s death has changed your life. This will provide the mediator with valuable information to share with the defense in an effort to distinguish this particular case from any other. Since your losses occur daily and sometimes hourly, it will be hard to remember every way your life has changed, but thinking of the biggest instances of hardships will be of great help to the mediator.

Be sure to bring whatever you need to make mediation as comfortable as possible; snacks, a cell phone, or any other items that might make you feel calm in an otherwise foreign environment.

Be prepared to compromise. In order for your case to settle, each side will have to compromise. You will not get everything that you would get if you won at trial. The defendant does not expect you to walk out empty handed, either, as you would if you lost at trial. Somewhere between your “best day at trial” and your “worst day at trial” there hopefully lies a settlement figure both sides can live with. The point of mediation is to see if both sides can agree on that number.

Understand the Numbers

At the end of the day, mediation is about numbers - specifically, dollar amounts. It is easy to get lost in the welter of numbers as a case nears settlement - gross amount, net amount, subrogated payments, costs, fees, and unpaid bills, to name just a few. Be confident that I will not let you get lost in the numbers that are being thrown around. The only number that matters to you is the net amount that you will receive if the case is settled. I will keep you informed of that number as we proceed throughout the mediation process. If you decide to settle your case, you will know the amount that you will receive after all the fees and costs are deducted. You will also have the benefit of a financial assistant from Capital Funding present at the mediation in case you have any questions about purchasing annuities.

Finally, and probably the most valuable advice I can give you is to be patient and try hard not to become anxious about mediation. This is your day to present your case to the other side. I will be with you the entire time. If at any point you want to stop the process, you have that option. Moreover, this is an opportunity for you to settle your case fairly and move forward with your life without constantly reliving the horror of what you have been through.