The following are suggestions which we believe will help you settle your case at mediation. The use of these will not guarantee a settlement, but your chances of success improve with every one of these suggestions that you follow:
EXCHANGE SETTLEMENT FIGURES BEFORE THE MEDIATION. You are encouraged to exchange figures prior to the mediation so that you can determine whether the process will be meaningful. By doing so, you set the parameters before you begin the mediation session and everybody is coming to the mediation with some of the mystery removed from it. This will prevent the possibility of sudden "sticker shock" that chills the negotiation.
EXCHANGE DOCUMENTS RE: DAMAGES AT LEAST 72 HOURS PRIOR TO THE MEDIATION. Whether this is done in the form of a settlement package, or simply an exchange of documents, it is extremely important that both sides of the case be evaluating the same documents (medical bills and reports, loss wage information, photographs of scarring, medical illustrations, etc.) regarding the issue of damages. Do not wait until the mediation to "ambush" the opposition with a new report, because it may be too late at that point to factor it into their assessment of the claim.
HAVE ALL NECESSARY PARTIES PRESENT FOR THE MEDIATION. It is necessary that the following persons be present: claimant, claimant's counsel, claimant's spouse (if a consortium claim exists), personal representative (if the claimant is a minor child or an estate), those appearing on behalf of any defendant (insurance company representative, attorney or personal representative), and any defendant whose presence is necessary for settlement (i.e., malpractice claim). No other persons will be allowed to participate except by agreement of the parties. If a necessary party (e.g., insurance adjuster) will not be present, you should notify the opposite party and mediator three days in advance so that the mediation can either go forward by agreement without the necessary party, or so that it can be rescheduled. All parties attending must have full settlement authority.
POSITION PAPERS AND MEDIATION DOCUMENTS. While it is not necessary for the parties to submit position papers, briefs or documents to the mediator in advance of the mediation session, you are certainly free to do so at least a week in advance of the mediation session. If you choose not to do so, but do have documents that will be of assistance to the mediator or to counsel, you are encouraged to bring a sufficient number of copies of such documents to the mediation.
EXPLORE SETTLEMENT OF REIMBURSEMENT/SUBROGATION CLAIMS IN ADVANCE. To the extent that it is possible to do so, the settlement of reimbursement and subrogation claims (health insurance, medical payments coverage, workers' compensation, etc.) in advance of mediation expedites the mediation process and can eliminate the necessity of having representation for the reimbursement/subrogation claimant.
VERDICT HISTORY. It is often desirable to know the verdict history in the venue where your case is pending and to the extent you can get information from lawyers in that county or circuit, it may be helpful in the evaluation of the case.