Mediation – The Importance of Preparing Like You’re Going to Trial

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April 28, 2020
Edward Smith

Mediation in Personal Injury Cases

Too often attorneys, both plaintiff and defense litigators, take mediation too lightly.  The defense may approach a mediation too casually with a mindset that there’s nothing to lose by not settling, and the plaintiff’s counsel may be too unwilling to lay their cards on the table and demonstrate to the defense the strengths and merits of the case.

This attitude, from both sides, is more often than not a mistake.

What is there to lose by putting on your best effort at mediation?  Trials can be extraordinarily expensive and unpredictable.  A judge may give bad and harmful rulings.  A jury may not understand the case or appreciate its value, or worse, be prejudiced for one reason or another having little or nothing to do with the merits of the case.

The Advantage of Mediation

Mediation may be an opportunity to not only demonstrate to the client the strengths and weaknesses of a case, but also a chance to show the defense that there’s a case to be taken seriously and paid attention to.  Mediation is also an excellent opportunity to hear from a neutral (the mediator) strengths and perhaps more important weaknesses of the case that might not have been considered previously.

Mediation may also be a great opportunity to hear from the other side their concerns about the case and why they might think and perspective that it has a different value than anticipated.

Mediation is also a great opportunity for the client to hear and process outside opinions of the strengths, weaknesses, and merits of their case.  If the attitude is trial or bust, many months and perhaps unnecessary expense could have been avoided if a more objective earlier view of the case was taken.

So, use mediation to one’s advantage and be willing to open one’s eyes, ears, and perspectives.  Be willing to listen and accept criticism to understand the potential problems that might be roadblocks to getting where one wants one’s case to go.

An experienced personal injury attorney will not take mediation lightly.  If nothing else, it’s an opportunity to highlight to the adverse side what one’s case has to offer.  Keep in mind, your claim is not the only case the defense attorney has.  Given many defense attorneys are employed by insurance companies, many have dozens, and in some instances hundreds, of cases and files to contend with.

Mediation can be used to bring your case to the forefront to grab the defense attorney and their employer, the insurance company’s attention. Here’s your time to shine.  Although unpreparedness by the defense may be viewed as not caring, the truth may simply be that the individual may be overworked and underpaid.  By putting on the best effort at mediation, this could bring enough attention to the defense that your case warrants focus and concentration.  And, in turn, may lead to a favorable outcome sooner than later.

Tips for Attorneys When Preparing a Case for Mediation

A skilled personal injury attorney will routinely communicate with their client and regularly take notes concerning the client’s medical treatment and progress.  These notes are vital towards the preparation for meditation because some of the notes may be many weeks, months, or even years old.  The vast majority of people cannot remember what they ate for breakfast, let alone what a client’s symptoms were months ago, or which medical treaters were seen and for what reason in the past.  Yes, this point seems obvious, but the reality is in the hustle and bustle of law practice too often than not scrupulous timely note-taking is a forgotten art. Don’t let it happen.  Take notes today knowing that those notes will be vital in preparing for mediation, or trial, down the road.

Importance of Medical Care

For personal injury clients, it is critical that medical care is sought in a timely fashion.  Unfortunately, many people do not have health insurance, so it is difficult and expensive to obtain needed and timely medical care.  This is where the best injury attorneys can do a lot of good in helping to assist injured clients in getting the medical care that’s needed.  An experienced attorney will know physicians and medical facilities in the area that can help the client obtain needed and timely medical help, which may not require health insurance and may be willing to accept payment when a case is resolved.

This is particularly important when preparing for mediation, and if necessary, trial.  If clients are hurt and don’t get help medically, all too often, defense attorneys and juries will assume that the client simply isn’t hurt that bad, when we know that this isn’t true.  A client may be suffering in pain at home, unable to obtain medical care without any viable options.  As a result, this may cause one’s case value to decrease and make settling at mediation difficult.  Alternately, if the client obtains the necessary and needed care early only, this will not only help the client on the road to recovery sooner, but also demonstrate to defense counsel the seriousness of the injury(s), and that the client did what they could, when they could, to get better sooner than later.

Plan of Attack

As the old saying goes, get your ducks in a row!  The most successful personal injury attorneys consult with and routinely hire the best experts available.  Historically, plaintiffs attorneys wait until the last minute to hire experts because often they are expensive. Usually, attorneys will only hire experts in preparation for trial.  But why wait?   In many cases, a better strategy is to hire experts early, and better still, use them for mediation and not exclusively for trial.  This perhaps has the effect of showing the adverse side of how seriously you take the case and the level of importance you give to preparedness.  Why not go into mediation with a show of strength?

In personal injury cases, frequently used experts included life care planners, biomechanical experts, accident reconstructionists, vocational experts, and economists, to name a few.

With personal injury cases, in particular, an accident reconstructionist is used to detail the motor vehicle collision and explain fault and negligence.

A biomechanical expert will explain how the forces in a motor vehicle collision can and/or have caused certain injuries.

A life care planner will detail the future medical needs a client may require.

A vocational expert will explain how injuries have limited a client’s employment and wage-earning capabilities.

An economist will detail the time value of money and place value of the future costs to be incurred, whether medically, or vocationally.

Imagine going into mediation with any or all of these experts!  This could show the defense of the true value and importance of the case, and also its seriousness.

Importance of Discovery

Before agreeing to mediate a case, use written and oral discovery to fact find various aspects of the case.  Generally, discovery is an expensive tool, whether its form interrogatories, special interrogatories, requests for production of documents, requests for admissions, or depositions, to determine the strengths and weaknesses of one’s case.

Perhaps consider using these tools before agreeing to mediate to flesh out defense’s positions and points of view.

In a personal injury case, if the defense is disputing liability, use discovery as a tool to determine exactly why the defense is disputing liability, and based on what specific evidence.  Perhaps before a case gets too far down the line, and after a significant amount of money is sunk into it, a plaintiff’s attorney can determine whether or not a liability dispute has any real teeth.  Alternatively, discovery can be used to demonstrate the weaknesses in the defense’s argument.

Also, in personal injury cases, discovery can be used to determine what medical care or medical expenses, the defense is specifically disputing.  Discovery can be used to flesh out the strengths and weaknesses of defense’s arguments and positions, which may provide ammunition and/or evidence that can be used at mediation.  Or conversely, and again, the plaintiff’s attorney may be able to determine exactly what obstacles may have to be overcome to reach a settlement.

It is also important to provide meaningful responses to the defense.  Be generous and try to make their life easier.  Provide medical records and/or the names, addresses, and phone numbers of all medical treaters who can be easily subpoenaed for records.  Be cooperative and helpful.  Try to make their job easier.  Cooperation may be favorably looked upon and help make settlement easier down the road.

Communicate with the Defense

The discovery rules in California generally only require plaintiff’s counsel to respond to defense when asked, and not to proactively offer information.  Our suggestion: help get the other side informed.  Constantly feed defense counsel new and additional information.  Make sure your client and their case aren’t forgotten and gathering dust on the defense counsel’s shelf.

Consider periodically calling the defense attorney to let them know what’s going on with your client’s case and/or what new medical professionals might be treating the client.

By keeping defense counsel up to date and aware, the defense may, in turn, make a point of noting the increasing value of the case.  Then, when mediation comes, there are no surprises, and time is well spent and not wasted.

Usually, the insurance defense attorney will go into mediation with a specific limit, or ceiling, of money that can be offered to settle a case.  If the defense attorney is unaware of the latest developments, they might not have properly valued the case and time at mediation is wasted because the attorney simply doesn’t have the level of funds necessary to potentially reach a settlement.

Help the other side help yourself!  Yes, the process is set up to be naturally adversarial, but it doesn’t have to be.  Consider working with the other side to perhaps make their job easier, and in doing so, they may be able to get the case resolved at mediation and avoid the ongoing time and expense of pushing a case unnecessarily to trial.

Believe it or not, attorneys are people too.  Many, especially defense attorneys, just want to get the case done, closed, and off their desk.  Again, yours might be one of a few hundred they have to deal with.

By keeping the other side in the loop and regularly feeding them information about your case well ahead of time, they might be just as motivated as you in getting the case resolved at mediation.

A trial is risky and unpredictable for everyone.  Yes, sometimes it is the best and only option, but if it can be avoided perhaps, it is wise to try to do so.


The bottom line, don’t take mediation lightly.  Use it to your advantage.  Prepare early and help the other side see that your case warrants attention.

The best personal injury attorneys use mediation as a tool to demonstrate the strengths of their case.  Prepare as if preparing for trial, and more often than not, good things will happen!

Sacramento Personal Injury Lawyer

I’m Ed Smith, a Sacramento Personal Injury Lawyer. Should you or a family member need legal advice from an experienced injury attorney following an accident, call me for free, friendly advice at (916) 921-6400 or (800) 404-5400.

We are members of the National Association of Distinguished Counsel and the Million Dollar Advocates Forum.

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