Explaining To Your Client Why Mediation Is Better Than Trial

The process of preparing a client for mediation begins at the first interview. In a plaintiffs’ personal injury practice, clients seldom have prior experience with the litigation process. However, they may have to unlearn a lot of what they think they know that isn’t right, wildly inaccurate preconceptions of process and case value based on popular culture, sensationalized media reports, movies, and T.V. shows, and advice from misinformed friends and relatives.

Start by outlining the steps of the process: investigation, the gathering of documents, interaction with medical providers to develop an accurate portrayal of injuries and prognosis, the lawsuit process, settlement demands, offers of judgment and settlement, how insurers deal with similar claims, mediation, and trial. The attorney who takes time to explain the process patiently, honestly, and empathetically to clients in the beginning and communicates adequately along the way builds rapport and trust. That leads to an easier time guiding the client to an optimal resolution at the other end of the process.

A few talking points to weave into discussions with clients in the beginning, along the way, and in preparation for mediation when that time comes include:

Case valuation must be based on evidence that would be admissible in court, preferably through exhibits and testimony of credible witnesses other than the plaintiff. Subjective complaints are credible to the extent that we can objectively corroborate them through radiology images, photographs, medical witnesses, and lay damage witnesses. Involve the client in identifying such evidence, and the client will better understand how the presence or absence of such evidence will affect the negotiation position at mediation.

Explain the interaction between liability, damages, and insurance coverage. Patiently explain, perhaps with diagrams drawn on a legal pad, the relationship of liability coverage, UM/UIM coverages, time-limited offers to settle within policy limits under O.C.G.A. § 9-11-67.1, offers of settlement or judgment under O.C.G.A. § 9-11-68, and how insurance companies determine what to authorize for settlement.

Trial is exciting but also stressful. Often everyone leaves some blood on the courtroom floor. Usually, the only people who relish going to a jury trial are the lawyers, for whom it is a peak experience, an adrenaline-producing opportunity to show off their skills. The plaintiff most often must testify in court. Most people fear public speaking more than death, and your client may not be an exception. Clients generally find trials extremely stressful, no matter how well prepared they may be.

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