I conducted several video mediations last week, and many of the same obstacles kept presenting themselves. We were able to resolve each case, but a few effective and basic tips can help you in preparing for the process. Here they are:
1. Eliminate surprises. While “Perry Mason moments” may have a place in the courtroom, they don’t help you in dealing with insurance adjusters and Company HR professionals who roundtable, value, and reserve cases weeks before the mediation. Proper reserving is as much a function of advance work by plaintiff’s counsel as it is for proper evaluation by the other side. Make sure the other side knows critical facts that could substantially alter a case valuation.
2. Damages. Update your damages well in advance and share relevant information. If you haven’t shared all of the pertinent damages information then your case may be grossly under-reserved. If you are dealing with back pay, front pay, medical liens or with the CMS (Centers for Medicare and Medicaid Services), get the information needed to your opponent ahead of time. If you have a large workers comp lien, invite the carrier to attend the mediation with counsel or have the ability to contact them, if necessary.
3. Make a demand well before the mediation. This is akin to the concept of surprise elimination. Rarely should you begin a mediation without a prior written demand on the table. Demands assist the reserving process. They ensure that the other side has had time to digest the offer and allows time for the parties to affirm that the mediation process will work.
These are obvious steps to take but make yourself a checklist and make sure these three things are considered before every case you mediate. Call me for your next case.