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Six Tips for Preparing for Your First Mediation

As a young lawyer, I’ve found mediating cases to be one of the more enjoyable and rewarding parts of my job. So long as they prepare for a mediation, I have no doubt that any young lawyer can enjoy the mediation process and get excellent results for their clients.

Here are six tips for young lawyers preparing for their first mediation.

Prepare a demand before the mediation

Prior to any mediation, it’s crucial to have a well-crafted demand prepared in advance that encompasses past, present, and future damages resulting from your client’s injury or loss. The demand needs to be grounded in logic so it can be defended and justified at the mediation to both your opposing counsel and the mediator. Simply throwing out a high number that has no factual or legal basis will get you nowhere. Plaintiffs’ lawyers need to explain to the parties why their demand encompasses the risk the defendant could be exposed to with an adverse judicial decision or verdict.

It’s also important to send your demand well before the mediation, so opposing counsel has adequate time to review the demand and go over it with their client. If you send a demand right before a mediation, there is a good chance that opposing counsel will not receive adequate authority to potentially resolve the case.

Understand the ramifications of a settlement

Lawyers preparing for mediation should have an understanding regarding other requirements that need to be satisfied with a settlement. It’s critical to obtain information such as outstanding medical balances and liens, and to have knowledge of consequences that can stem from a settlement of your client’s case, such as subrogation or general releases.

Prior to any mediation at our firm, we reach out to all our client’s medical providers for a list of their outstanding balances. If there are outstanding medical balances, they need to be presented to the defendant prior to the mediation and they should be incorporated into your settlement demand.

Even if there are no outstanding medical balances, it’s important to get ledgers from medical providers for two reasons. First, having medical ledgers gives you an idea of what medical care currently costs, which can give you leverage before, during, and after the mediation. Second, if someone other than the defendant has been paying a client’s medical bills, that should alert you to a potential private health carrier lien that could come into play down the road. If a private health carrier has already asserted their lien and entered the litigation, you need to be mindful of addressing the lien during settlement discussions at the mediation.

Understand the subrogation aspects of the case

Your settlement can have effects on other pending cases. If you are settling a workers’ compensation case, ensure you understand the subrogation consequences and the effects the workers’ compensation settlement will have on a potential third-party recovery. The same thing goes if you are a personal injury attorney or an employment law attorney.

If you settle the third-party case, understand the consequences it will have on the workers’ compensation case. Also, be mindful of general releases with your settlement and releasing a party that might be the target of the third-party case.

If possible, try to get a global mediation and have all the parties at the mediation. If that is not possible, prior to your mediation, communicate with the lawyers handling your client’s other cause(s) of action so you understand what you can and cannot agree to in the fine print of a settlement agreement. Communication is key and at the end of the day, it’s not about the fee; it’s about getting the best results for your client. Work in tandem with other lawyers representing your mutual client so you can achieve the best results across the board. You cannot go into a mediation blind to these consequences.

Know the rules of the road

Read and become familiar with mediating judges’ posted rules for a mediation. This will help give you an idea of their requirements so you don’t make rookie mistakes.

Does the judge require your client’s attendance?

When is the mediation memo due?

If the judge requires attendance, do they want in-person attendance, video attendance, or will it be over the phone?

Prior to the mediation, does the judge require a good faith offer in response to the settlement demand?

Ahead of a mediation, take time to both determine whether your mediation judge has rules and get familiar with them. Following the rules could provide you with a strategic advantage while keeping you and your client in the judge’s good graces.

Prepare your client for what’s ahead

Ensure your client is prepared for potential outcomes of the mediation and help them set realistic expectations about those outcomes. I always explain to clients that neither party is bound to settle at a mediation. We do not need to accept the other party’s top offer, and they do not need to agree to our demand. Clients should understand that mediations are a way for the parties to come together to negotiate a resolution that averts risk for both parties. Many judges are of the mindset that the most successful mediations are when all parties leave unhappy.

If you go into a mediation telling your client to not compromise at all, I expect little will be accomplished at the mediation. Make sure your client understands risk and is ready to take part in a good-faith compromise to reach a resolution. That understanding will be shaped by you preparing your client for the mediation process.

Mediation memos do your heavy lifting

Perhaps the most important piece of advice I can give a young lawyer regarding mediation is to take time preparing your mediation memo. The mediation memo is your chance to get the mediator on your side as to valuation. Make it clear why your client’s case is a winner, and why the valuation for a settlement should be high (or low if you are representing a defendant).

However, you do not want the mediator’s eyes to glaze over while reading the memo. Craft a mediation memo that is concise and compelling, not long-winded and uninteresting.

Putting it all together

Mediations are exciting opportunities for young lawyers to get “on your feet” experience advocating for their clients in front of a judge. As with most other aspects of the practice of law, preparation is the key to success. The more prepared a young lawyer is for a mediation, especially their first, the more likely they will be to consider the mediation a success.

Christopher D. Armstrong is an associate at Pond Lehocky Giordano LLP, the largest workers’ compensation and disability law firm in Pennsylvania, and one of the largest in the U.S. He can be reached at carmstrong@pondlehocky.com.

Reprinted with permission from the December 15, 2022 edition of The Legal Intelligencer © 2022 ALM Media Properties, LLC. All rights reserved. Further duplication without permission is prohibited, contact 877-257-3382 or reprints@alm.com.

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