I am a retired trial lawyer. I now devote my entire professional energy to ADR and, most particularly, to mediation. I am certain that I have learned of more about the law and human beings in my 18 years of mediation experience than I ever believed possible. I am constantly amazed, and I mean that term sincerely, with the things I have witnessed my lawyer colleagues do in mediation. One of the reasons for this is that until recently law schools offered little in the way of teaching mediation advocacy. Mediators also see seasoned trial counsel who became accustomed to going to settlement conferences in the guise of “mediation” with retired judges who might not have approached case resolution in the way a professional mediator might. Knowing how to represent a client in arbitration or mediation is every bit as important as for a case going to trial. I suggest that preparing for the mediation of a litigated case is not only as important as trial preparation, but it will help the attorney be better prepared if the case does not settle. The point of this short article is to illuminate some, but not all, of the blunders I have witnessed.
One of the unfortunate truths of a 21st century personal injury plaintiff’s law practice is that it is becoming much harder for practitioners to earn a living. Many plaintiff’s firms accept a great number of cases hoping to do well on a few. That practice is understandable from a business point of view. However, the stress it places upon those firms is enormous. One of the common practices I see is the tendency to refer clients to particular healthcare providers for treatment, usually on a lien basis. I have always thought this was an unwise practice. Many times a lawyer will interview a new client and find out that the client has no health insurance or the lawyer may not be satisfied with the treatment or cooperation she is receiving from the client’s regular health care provider. But to refer a client to a healthcare provider leaves yet another point of attack for defense counsel. I cannot remember a personal injury case I have mediated in the past 5+ years in which such a situation did not result in comments by the defense followed by a suggestion there is collusion between counsel for plaintiff and the health care provider. I sincerely believe this practice should be curtailed to the extent possible. Perhaps if counsel had available for the new client a binder of information from several healthcare providers who accept cases on a lien basis. A simple disclaimer, perhaps with every C.V. or clinic information that the attorney is providing the information as a courtesy to the client without endorsing or recommending any one. I suggest that such a practice would soften any appearance of conflict or collusion.
Another problem is that because some firms are, out of necessity, taking more small damage cases for which they refer clients to healthcare providers, the defense often consistently sees the same provider serving clients of the same law firm. Even when there is no business interaction, it raises suspicion with the defense. If a client has a regular health care provider and seeks treatment for her injuries from that provider, it is much harder for the defense to attack him the credibility of the provider. That said, I am abundantly aware of the difficulty some treaters can create for counsel in a case.
In one recent case counsel for the plaintiff did not realize that the health care provider to whom he had referred his client had been arrested for insurance fraud in one of the biggest cases in our community. This knowledge did not come to him until our mediation through the defense. Suffice to say that the case settled quickly and probably for substantially less than it might otherwise have. The point of this is that if we refer our clients to a healthcare provider and that healthcare provider makes a professional mistake or tumbles into trouble with insurance companies or the law, such a situation may expose the referring lawyer, individually, to a malpractice action. Remember, unless we are careful, when we refer a client to another professional a trier of fact may find we endorsed that professional.
My observations are not limited to plaintiffs by any means. Defense counsel are many times “in-house” meaning they are employees of the insurance carrier. Unlike private practitioners, those attorneys have little control over their caseloads. As a result many relatively new lawyers find themselves overwhelmed. Even the most seasoned and competent lawyer can only do so much and still have a life outside the firm. The biggest problem I see consistently is the failure of counsel on both sides of the “v” being unprepared with information on medical specials, set offs for health insurance, state medical provider liens, etc. There is no way to resolve case if counsel do not know what the damages might be. Even if mediation is through a court program with a deadline, I encourage counsel to try to have that deadline extended through the court to complete discovery or, at the time of assignment, make it very clear to the court you may not be able to proceed until discovery is completed. Given that counsel on both sides usually are busy, trying to conduct a mediation without information is an unfortunate waste of time.
In another case where one side had made a snap determination that liability was not an issue, i.e., there was no liability, neither side seemed to have made much effort toward finding out what the problem might be. It was not until I, as the mediator, reviewed the materials provided by counsel and was easily able to find evidence of liability on the part of defendant. To no one’s surprise, the defendant was flabbergasted with the evidence after acknowledging its existence. Even without the defense being prepared, the case moved quickly to settlement.
Those of us in this profession must continue to encourage our client attorneys to be prepared for mediation and to avoid all of the pitfalls one would expect in litigation, well in advance of their first mediation session. We can settle a significant majority of the cases brought to us when everyone is prepared. We can save the parties and the attorneys (and insurance companies) a great deal of time and money if they will bring to us, their selected mediators, the tools we need to help them find their way to settlement. Similarly, clients, whether individual or institutional, must be schooled on the process of mediation and know that if they do not cooperate and provide all information, whether the client believes it is relevant or not, that may relate to the matter, to counsel, they may be responsible for a failed mediation.
Since we are the professional neutrals, we should do our best in the convening stage to make certain that counsel know of the need for being prepared and ready to negotiate. If we pull on the laboring oar just a little bit harder, more of our clients will leave mediation sessions with a settlement agreement in hand.
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