Personal injury cases are difficult to keep objective; people have been injured, after all, and often feel passionate anger about the circumstances. This by itself often makes convincing clients that mediation is their best option a challenge: Many injured parties walk into a lawyer’s office seeking vengeance, and a calm, objective mediation process doesn’t feel impressive to them.
Mediation is often the best option, however – but convincing clients of that fact is just step one in making the mediation process for personal injury claims as successful as possible. There are many ways mediation can go wrong for plaintiffs in a personal injury mediation process, and defending against these mistakes is the best way to optimize the potential award.
Step One: Preparation
The most crucial step for any attorney is to meet with their client prior to the mediation process. This allows the attorney to:
• Assess the demeanor of their client and the impression they will give. Coaching your client to present themselves as sympathetically as possible and to avoid angry outbursts that might undermine sympathy is crucial. If your client isn’t reliable or doesn’t present very sympathetically, a strategy that minimizes their vocal role is best.
• Review the evidence and data and assess your strengths and weaknesses. Knowing what will impress and what actually hurts your case beforehand will allow for a strategy instead of simply letting the chips fall where they may.
Once you’re prepared and know how you’ll approach each aspect of the claim, you can proceed to the mediation itself.
Step Two: Strategy
In the mediation, it’s important to stick to your strategy, but be prepared for "wild cards" or unexpected moments. A few key considerations for getting the best possible outcome:
• Don’t be the aggressor. Many "old-school" attorneys will treat a modern mediation like an old-fashioned Mandatory Settlement Conference, when a judge acted as mediator and aggressive "lawyerly" tactics were often rewarded. Stay grounded and polite and resist the urge to charge in "guns-blazing." However, if the other side starts to attack, you have to be prepared to attack right back.
• Have the story straight. Your client should be ready with their narrative, able to quickly and efficiently make their points and describe their injuries and the consequences thereof. Stumbling and hesitation are costly.
Preparation and a clear strategy are the keys to getting the most out of any personal injury mediation – be ready!