Preparing the Mediation Statement in Injury Cases

Tips for an Effective Mediation Statement

Prepare and Serve a Strong Mediation Brief in Advance to Get a Better Resolution

Many insurance claims and lawsuits get resolved in confidential mediation, not at open trial.

Therefore, you want to use all the strategies available to negotiate better during the mediation process.

You can use one of the strategies to engage the mediator in advance: the pre-mediation statement detailing your positions and supplying supporting evidence to the neutral.

This article gives tips for preparing a mediation statement that serves as a roadmap for the mediator to focus opposing counsel and the defendant on the evidence supporting your positions so you can demand the defendant pay the amount you seek.

Keep reading to learn more about writing a confidential statement that makes the mediator want to advocate on your behalf.

And call us at 804-251-1620 or 757-810-5614 if you have questions about getting the best personal injury settlement possible.

What is a Pre-Mediation Statement?

The pre-mediation statement is a written brief educating the mediator on the factual and legal issues in dispute, providing the critical evidence (documents and deposition testimony) supporting your conclusion on case value, and describing past settlement negotiations with defense counsel.

What is the Purpose of a Mediation Statement?

Experienced attorneys use the pre-mediation brief (confidential and shared) to explain their positions and do the following:

• Establish that their clients’ position is reasonable

• Show the mediator and the opposing party the strengths of your case.

• Draw attention to the weaknesses of the other side’s positions.

• Focus the mediator on the issues you find critical to the outcome.

• Make it so the mediator does not have to search for facts or case law supporting your client’s position.

• Highlight your preparation and willingness to go the distance and try the case.

Are Mediation Statements Mandatory?

Many mediators encourage attorneys to send pre-mediation statements in advance.

However, whether you have to provide a mediation brief depends on the rules of the court or the administrative agency exercising jurisdiction over the case or your mediator’s preferences.

Although you may not have to give a mediation statement, I recommend writing and serving one in every case to promote your interests. Respecting the process may help you resolve the matter and obtain a reasonable settlement agreement. The mediator can use your brief as a roadmap during the private sessions.

What is the Proper Length for a Mediation Statement?

The right length for a mediation statement from a plaintiff depends on the number of parties involved in the case and the complexity of the factual and legal issues.

However, in most litigation (including motor vehicle accident and workplace injury claims), the ideal length for the body of a persuasive mediation statement is five pages or less, single-spaced (and rarely more than ten pages). This page length doesn’t include the attached exhibits.

The goal is to thoroughly explain the case to the mediator, clients, and the other side in a short, simple format.

What is the Right Tone for a Mediation Statement?

As with all legal writing, plain English is the most effective. 

Write a simple statement with a conversational tone advocating for your position without attacking the other side’s credibility or personality.

What Should I Include in the Pre-Mediation Statement?

You can use any writing form to prepare a persuasive mediation brief – paragraphs, bullet points, charts, etc.

But an effective mediation statement should include the following items, subject to the exceptions discussed later in this article:

• How the litigation started (car crash, work accident, wrongful termination, product liability, medical malpractice, legal malpractice, etc.) and the date of the injury: A brief summary (one paragraph) is acceptable.

• Parties and their attorneys (including counsels’ telephone numbers and email addresses)

• Personality traits affecting settlement negotiations
  

• Persons with decision-making authority for both parties and whether they will attend the mediation in person or by telephone (insurance representatives such as the claim adjuster or the risk manager for a self-insured employer)

• Other persons who may help the parties agree to a deal during the mediation (lien holders, reinsurers, etc.)

• Procedural status of the litigation. For example, in a personal injury case, the parties may participate in mediation before the plaintiff files a lawsuit or before or after the court rules on dispositive motions (such as motions in limine or for summary judgment). Similarly, in a workers comp mediation, the mediator should know if the injured employee has an Award Order (Letter) and whether any claims or applications to stop benefits are on the hearing docket.

• Negotiations in advance of the mediation, including the first offer from both sides and the most recent proposals to settle (if applicable): You may also attach any written demand you made or received.
  

• Areas of agreement (stipulated facts or legal issues)

• Key issues that are affecting the parties’ valuation or reason for mediating.

• Material and relevant facts regarding liability, compensability (in workers comp), work status (light duty, full duty, or total disability), permanent impairment level, and insurance coverage sources: The most effective pre-mediation statements tell a good story using the available facts.
  

• Expected testimony of lay and expert witnesses

• Your pre-injury earnings and post-injury wages (if applicable)

• Whether there is an agreement on the nature and extent of the injuries

• Legal citations (case law) affecting the outcome of disputed issues

• Additional legal claims pending or available to the plaintiff (tort claims for negligence or strict liability, workers comp benefits, Social Security disability, long-term disability, VRS payments, or labor and employment law actions)

• Outline of damages (how you calculated the amount you seek)

• Strengths and weaknesses of your opponent’s case

• Proposed settlement figure or range

• Subrogation rights that may affect the outcome.

• Whether a Medicare Set Aside (MSA) allocation is needed and, if so, whether the parties have received Medicare approval

• Conditional payments to resolve: Specifically, whether you or the other side will pay them.

• Whether the defendants will require resignation and release of claims (in work accident cases)

• Relevant exhibits (for example, the reports addressing legal and medical causation, disability, and future medical expenses in personal injury and workers compensation cases)

• What you want from the mediator

Confidentiality or Mutual Exchange: Should I Share the Pre-Mediation Statement with the Other Side?

Sharing the pre-mediation statement before the mediation with the other side is a critical decision affecting the likelihood of success and agreement.

You must decide if you will give a copy to the mediator only or if you will also send a copy to the defense counsel. 

In addition, you must determine what exhibits promote your interests during the process and will help you resolve the case during the session.

Some attorneys think the refusal to exchange mediation briefs shows the other party doesn’t want to settle. However, other attorneys disagree and think confidential mediation statements encourage candor with the mediator and the likelihood of a successful settlement conference. 

Let’s examine the arguments for both views. 

Advantages of a Confidential Mediation Statement

Here are the advantages of keeping the pre-mediation statement private with the mediator:

• You can take a more aggressive tone in the argument without worrying about upsetting your opponent and derailing negotiations. Instead, you can put the heavy lifting on the mediator to figure out the proper manner to use with the defendants.

• You can be more open with the mediator about your case’s weaknesses and other factors affecting the decision to settle the matter that you would not give to the other side in pretrial discovery.

• If the parties have not exchanged opening offers or demands, sharing a proposed settlement range could lead to you bidding against yourself. For example, your opponent may think its risk is more significant than you do.

• You can highlight for the mediator the parts of the documents you will rely on at deposition or during the trial without drawing opposing counsel’s attention to these items.
  

Advantages of Sharing the Pre-Mediation Statement

Here are the benefits of voluntarily exchanging the pre-mediation brief with the opposing party:

• Sometimes differences in case valuation stem from misunderstandings. The mediation brief may clarify the issues and cause your opponent to view the case in a different light, more favorable to you.

• The other side may rely on case law that you can distinguish easily or that an appellate court has overturned. Or it may give an incorrect summary of the decision. If you see a citation to such a judicial opinion in the mediation statement, you can correct it to persuade the insurer to offer more. You want the mediator to encourage the discussion using only the correct case law.

• If the parties intensely dislike or mistrust each other, the symbolism of sharing a pre-mediation brief can break the ice and help the parties start communicating and cooperating.

• A well-written mediation statement supported by case law, statutes, and exhibits may persuade your opponent that you are ready to go to trial and scare the claim adjuster into offering more money.

My Thoughts on Sharing the Pre-Mediation Brief: Exchange the Statement but also Send a Private Letter to the Mediator

As a plaintiffs’ lawyer, I recommend preparing and sending a mediation statement to the mediator and opposing counsel (with the hope that defense counsel will share it with their client).

But you should withhold confidential information that could harm your case, mainly if the items are not discoverable or admissible. 

Instead, you can discuss the case’s weaknesses or your thoughts on the importance of the parties’ personality traits with the mediator by telephone or when you meet privately.

Or you can send the mediator a private letter with the information you do not want to disclose to the other side, such as the claimant’s background, other factors affecting valuation, or work product (past deposition testimony from the opponent’s experts, witness statements, documents from similar cases against this party, etc.). Indeed, I find this method the most helpful in turning the neutral mediator into an advocate willing to push back against the insurer’s evaluation.

In addition, you may want to withhold from the mediator your desired settlement range or “bottom line” and how you calculated these figures. Indeed, I only share this data (or a summary) if I know the opposing party evaluates the case much differently than I do and that my client will get a better outcome by supplying an in-depth discussion of how I calculated its potential liability and exposure.

For example, in a recent workers comp case, I persuaded the employer’s lawyer to get more settlement authority after showing the risk it would have to pay a significant amount of temporary partial disability benefits even if it found a light-duty job for the claimant paying $50,000 per year. This argument was effective because it persuaded the mediator to advocate for more money on my client’s behalf.

When Should I Turn Over the Mediation Statement?

If the parties decide to exchange mediation statements, aim for disclosure to the mediator and opposing counsel at least ten days the settlement conference.

Serving your written statement by a date well in advance of the mediation increases its effectiveness because it makes defense counsel and the claim adjuster aware of things they may not have considered. And this gives opposing counsel time to get increased settlement authority if needed, which may be what the parties need to reach a fair deal.

Try to send your confidential letter to the mediator at the same time. However, if your schedule prevents this, send the document at least three days before the joint settlement conference. You want the mediator to have time to read and digest your writing in advance of the mediation.

We Use Pre-Mediation Statements to Get Results for Injured Workers and Auto Accident Victims

Avoid simply going through the motions during the mediation and litigation. Respect the process to achieve success during the conference and resolve the matter for good.

Instead, put effort into communicating your story and why you will win at trial when writing the pre-mediation statement. And document the evidence supporting your demand. This time and effort can save future litigation expenses and put tens of thousands of dollars in your pocket (or more).

Our law firm uses alternative dispute resolution (ADR) methods, such as mediation and confidential mediation letters, to get top-dollar settlements for our clients as soon as we have the information to evaluate the case.

Call now to get started on the road to recovery.