Mediation has some specific quirks and special factors that apply in several specialty areas. This essay covers specific practice pointers for these types of mediation. The specialty areas covered in this two part column are Personal Injury, Commercial Litigation, Family Law, Medical Malpractice and Bankruptcy.
A. Personal Injury
The advantages of mediation for a plaintiff in a personal injury claim include the fact that mediation of a claim leads to less risk and quicker resolution. For a plaintiff's attorney, mediation moves cases. ADR is often the best chance to work out a structured settlement and those non-dollar matters (e.g. apologies) that can enhance a settlement's value and provide a plaintiff with benefits that a law suit generally does not provide.
For a defendant's insurance company, mediation vastly reduces the overall expense of defending cases. With early mediation, 80% of the cases that would otherwise be litigated are settled with only the preparation and costs equivalent to paying for a single deposition.
Mediation is also a protective device for a defense attorney in case of a bad result at trial. If the defense attorney attempted mediation and failed, it helps to protect the attorney from blame. ADR is also a tool that provides for an outside force to allow re-evaluation of a case when a bad file notation has locked the defense into an unreasonable position.
1. In mediation (and often no where else), the Defendant should (perhaps):
Tell the plaintiffs what similar cases are settling for.
Explain your defense, including causation problems and other issues.
Stress your reasonableness and willingness to be reasonable.
Apologize that the plaintiff suffered harm (you are not admitting that you caused the harm, just stating the truth that you are sorry that the plaintiff suffered it).
2. In mediation (and often no where else), the Plaintiff should:
Be rational and balanced.... [continues]
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