If you are a plaintiff in a civil lawsuit, it is likely that you will participate in a mediation at some point during the case. A mediation is an opportunity for all of the parties to get together and have a discussion that is facilitated by a neutral party – the mediator. It will be an attempt to see if the case can be resolved through settlement rather than proceeding to trial. It is also a good chance for all of the parties to take stock of the current status of the case, weigh the pros and cons of each side, and determine value of the case before undertaking additional case expenses such as further discovery and depositions and trial preparation.
While you attend the mediation, it may seem as if things don’t move very quickly or that not a lot is going on for much of the time, but a lot of work goes into the mediation before it even begins. Lawyers spend a lot of time preparing for mediations in a variety of ways. While the preparation involved will depend on the type of case, here are some of the ways that your lawyer is preparing for your mediation.
One of the major ways that your lawyer will prepare for mediation is to draft a mediation statement or to prepare a settlement video. A mediation statement is a written summary of the case that sets forth all of the facts and issues in the case. It often includes a procedural timeline of what has happened in the case up to the time of the mediation, as well as what will happen procedurally in the case if it does not settle at the mediation. The mediation statement will typically include information like the type of injuries the plaintiff sustained, the amount of medical bills incurred as a result of those injuries, lost wages or income from any time off work or inability to return to work because of the injuries, and other values that are relevant to the case. It will generally highlight the evidence in the case that establishes that the defendant is liable for the harms to the plaintiff, and the evidence of how the plaintiff has been damaged as a result. This is the same evidence that the plaintiff would offer in court if the case were to go to trial. The mediation statement helps the mediator to understand the case and help the parties engage in discussions of the value of the case to try to reach a settlement agreement. Mediation statements are often provided only to the mediator, who will keep them confidential unless the parties agree that the mediator may share the information contained in the mediation statement, but sometimes the parties may want the other side to read the mediation statement so they can know each side’s position going into the mediation.
Settlement videos serve a similar purpose as a mediation statement. Rather than set forth the facts and damages of the case in writing, the video will show the other side that evidence in an audio-visual format. The videos give the other side the chance to see the case through the eyes of a juror in a condensed format, and also to get an idea of the plaintiff and their family and how they have been affected by their injuries or loss. Videos are generally shared with everyone who will be involved in the mediation and negotiation process and may be played at the start of the mediation.
In addition to preparing a mediation statement or video, lawyers also prepare for mediation by gathering and evaluating all of the values at issue in the case, such as medical bills, liens that will need to be repaid, lost income, future medical care that will be needed, and expenses that have gone into litigating the case. This will help your lawyer to discuss potential settlement values with you before the mediation, so you can know what to expect during the negotiations and make important decisions about what you would accept as settlement.
Lawyers will also spend time reviewing your file to be prepared to offer the mediator information and to answer questions about the case to support its value. This can include reviewing any rulings that the court may have issued up to that point in your case, deadlines that may be coming up in the case, how much discovery has been done and how much may be left to do, and researching what other, similar cases may have settled for.
Finally, lawyers often prepare for mediation by discussing the case with other lawyers within the firm and getting feedback on the case and its value. This can be a very useful tool, as it gives a variety of perspectives on how those who are not intimately involved in the case may interpret the evidence or issues in the case and can help your lawyer identify areas to focus on during negotiations or potential arguments that the other side may make during their negotiations.
If you are curious about what your lawyer has done to prepare for your mediation, you should ask them. Your lawyer will have a discussion with you before the mediation to prepare you for the process, determine potential settlement values, and answer any questions that you may have. It can help you feel more comfortable with the unfamiliar process of negotiations in your case to know what your lawyer has done to prepare and can help you have a better understanding of what your lawyer will be discussing with you and the mediator during the mediation.