Law Tips: Preparing for Mediation, Part 1

Presentation of Damages and Demands
A critical element to success in mediations is Presentation. I am pleased to offer Law Tips readers advice in this important process from Tony Patterson, Parr, Richey, Obremskey, Frandsen & Patterson, Lebanon, Indiana.   He delves into presenting damages as well as demands from the plaintiff’s perspective for ICLEF’s “Representing a Client in a Mediation” seminar.

How to Present Your Damages
In most cases, insurance adjustors and defense counsel break down the damages into categories of economic versus non-economic damages.  From an economic standpoint, it is typically fairly easy to sort out those issues.  Provide a summary of your client’s medical bills, along with any reports outlining future medical expenses,  including life care plans or testimony from physicians regarding future treatment.

If your case involves any discounts for medical services, which will be admissible pursuant to Stanley v. Walker, provide that information to defense counsel in advance of the mediation if requested.  Many plaintiffs’ lawyers want to hide this information from the insurance company and defense counsel.  However, if a settlement is to be reached, all the information which the jury will hear should be on the table.

With regard to lost earnings, you should provide your client’s pay stubs or any other documentation proving what their pay rate was along with their time off work.  If your client is making a claim for future lost wages, include a copy of the economic report or the diminished earning capacity evaluation in your settlement demand.  Furthermore, if future lost wages are a significant concern, make sure you provide any copies of expert reports or physician testimony outlining your client’s limitations and why they would be unable to work.  If necessary, provide a videotape or other demonstrative evidence showing the type of job your client had and how the client’s ability to perform that job is affected by the nature of their injuries.

On the non-economic damage issue, more creativity is required of the lawyer.  In many instances, it is very difficult to outline your client’s non-economic damages to the adjustor.  In these cases, unfortunately, a lawyer is left with the skillful advocacy and the track record of trying cases to force the insurance company to be reasonable with their client.  In some cases, however, if the size of the case justifies, settlement documentaries, videos and other technology-driven demonstrative exhibits can be extremely helpful in establishing and demonstrating the nature and extent of your client’s injuries for the insurance adjustor.  For example, we have provided adjustors with CDs which provide interactive summaries of client injuries.  We have found these to be extremely compelling with regard to relaying information to the insurance company and the defendants regarding damages and to impress upon them the significance of the client’s injuries.  Not only does it impress upon them the significance of the injuries, but it also impresses upon the insurance company that you are prepared and ready to go to trial if necessary.

Presenting a Demand That Helps Settle a Case
Written demands are helpful and provide an outline of a case for the insurance company and defense counsel.  However, there are limitations in a written settlement document.  Therefore, I think it is always helpful to provide a detailed presentation of your demand at a mediation session.

As discussed above, insurance adjustors and defense lawyers have very little ability to change their view of the case significantly on the fly.  Therefore, you need to provide everything that you will go over during the mediation presentation to the defendants well in advance of the  mediation session so that they may attempt to fully digest the information before it is presented.  However, because the importance of oral presentation and personal presentation is significant, in many instances, the insurance company will not have a full opportunity to reevaluate the case based upon your information.  Nevertheless, it is important that you present the significance of the aftermath of the injuries for your client. This may require proceeding to a first mediation session with an understanding that the likelihood of settlement is very low.

In many instances, we have proceeded to a first mediation session with the understanding that we are simply going to use it as an opportunity to explain to the defendant the seriousness of the case and to explain to them that the case will not be resolved for a nuisance sum, instilling in them the need to view the case very seriously and to go get more money.  We have found this to be a very fruitful approach in cases involving more serious injuries.


About our Law Tips faculty member:
Anthony W. Patterson, Parr, Richey, Obremskey, Frandsen & Patterson, LLP, Lebanon, Indiana, has extensive experience representing personal injury victims and wrongful death survivors throughout Indiana and the Midwest.  Mr. Patterson’s personal injury practice includes diverse concentrations in areas such as automobile and trucking accidents, medical malpractice and all other areas of the firm’s injury practice.

We appreciate Tony Patterson sharing his mediation expertise once again through ICLEF’s blog.  You can take full advantage of Mr. Patterson’s instructions as well as other stellar experts through our CLE Video Replay Seminars, Online/On Demand Seminar or Publication of “Representing a Client in a Mediation: Preparing Yourself, Your Client and Your Case.


Nancy Hurley, Law Tips blogger, has long-standing connections with Indiana lawyers.  She was formerly a member of the ISBA and IBF staffs for over 30 years. Nancy’s latest lifestyle venture is with ICLEF. We plan to utilize her exceptional writing and interviewing skills while exploring how her Indiana-lawyer background fits with ICLEF’s needs.  When she isn’t ferreting out new topics for Law Tips, her work can be found in our Speaker Spotlight blogs, postings on the ICLEF Facebook page, Twittering and other places her legal experience lends itself.

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The advice from on Preparing for Mediation takes another slant in Part 2 of our series next week.  Visit Law Tips then for perceptive comments on Client Expectations.


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