South Carolina Lawyer
SC Lawyer, November 2009, #4.
BASICS SERIES Effective Representation at Mediation
South Carolina LawyerNovember 2009BASICS SERIESEffective Representation at MediationBy F. Barron Grier III Mediation has become an integral part of the practice of law in litigation, and all participants should master the rules of alternative dispute resolution. The author has been a trial lawyer for 40 years and, having mediated hundreds of cases, offers the following suggestions.
It is an old cliché, but the number one thing is to be prepared: (a) Know the dates, times and places that everything occurred in the case; (b) know what the doctors say about causation and how strong their testimony will be on the issue of causation; (c) deal up front with prior and subsequent injuries.
It's amazing how many cases involve pre-existing conditions, and each side should be able to point out how and in what manner the particular incident giving rise to this lawsuit contributed to or exacerbated the pre-existing condition. The defense should be prepared to show how this incident did not exacerbate the pre-existing condition.
Plaintiffs' attorneys should not surprise the defendant or the defendant's adjuster with additional medical bills, lost wages, etc. for the first time at mediation unless they are de minimis. Out of abundance of caution, the defendant should write a letter to the plaintiff's attorney prior to mediation advising that he has been provided with the following medical bills, lost wages, etc. and that he and his adjuster will not consider anything new brought up for the first time at mediation. Insurance companies (except for very small personal injury cases) usually "round table" with many different people the value of cases based on the information they have before mediation. They cannot be expected to react at mediation for a large change in the numbers. This is a sure way to ensure mediation will not be successful.
Don't allow the other side to appear more prepared than you. This is especially true when there is a large experience difference between the attorneys. A younger attorney should go the extra mile to make sure that he or she has all of the information for the mediation and is fully conversant with all the necessary pros and cons of the case.
Don't argue or try to press damages that cannot be...