MEDIATION TIP #5 – DON’T LEAVE THE SMOKING GUN IN YOUR HOLSTER
May 22, 2014 by Glenn Loewenthal
This week’s mediation tip applies equally to both sides. At the beginning of every mediation, I always encourage all the participants to share everything with the other side that could potentially impact the value of the case. However, time after time, I hear things from each side that the other side does not know about. I think this is a bad idea for several reasons.
First, each side goes into the mediation with an idea of how much they would like to settle the case for. They do this by evaluating the information they have about their case and their opponent’s case.
If you are missing important information, your evaluation might be off by a little or a lot. If you are the plaintiff, you need to make sure that the defense has all the medical records and bills, any evidence of lost income, and any other evidence that supports your claim on issues of liability and causation. In addition, if you have any information about the defendant that might affect the value of the case, that should be disclosed also. The adjuster for the defense is only going to evaluate how much they are willing to pay to settle the case on the information they have. And don’t wait until the last minute. Defense lawyers and adjusters are very busy, and sending them a new set of medical records the day before mediation will not give them adequate time to evaluate it. Remember that many times your claim has to go through several levels of scrutiny with the insurer before a final mediation authority is set. Sometimes the adjuster at the mediation does not have the authority to make last minute changes to the amount of authority. As a plaintiff, you may not get as much money as you would have if the other side had all of this information well before the mediation.
The same thing holds true for the defense side. If you are on the defense side, you should remember that the plaintiff is also evaluating the case based upon what information they have. I can’t count how many times that I have been given information in mediation about information the plaintiff’s lawyer may not have. Examples include pictures of the plaintiff from the internet or social media, prior medical records or insurance claims and witnesses to the accident or injury. When I ask why the defense has not shared this information, I am almost always told that they are holding this information back so when the case goes to trial, they will have good impeachment evidence that will hurt the plaintiff’s case. However, just as I would tell the plaintiff side I will also tell the defense side to share that information, as each side is only evaluating the case based on the information they have. What good does it do if the two sides are evaluating different cases? It only makes it more difficult to settle. And share it before the mediation if you can, because it is much easier to set the expectations of your client before the mediation than it is based upon information you are being asked to absorb in the middle of a mediation session.
Why are you at mediation in the first place? You are there to try to settle the case, right? Keep the final goal in mind. Around 80% of cases settle on the day of mediation, so play the odds. Don’t leave the smoking gun in the holster, or you might be leaving without a settlement on a case that could have easily been settled.