Mediation is a great opportunity to resolve disputes without the need for lengthy litigation or the uncertainty of the timing or even outcome at trial. When properly coordinated, all decision makers are available at mediation to resolve the dispute.  For best results, the decision makers need to have all the information necessary to evaluate fully the case before the start of mediation.  In most situations, full settlement authority has to be obtained by one or more parties before the mediation begins.  One of the most critical aspects of pre-mediation preparation that is sometimes overlooked is having all medical bills and other items of damages presented to the opposing party(ies) at least thirty days prior to mediation. This article will explore the importance of this preparation and provide practical tips for ensuring a successful mediation.

Why Pre-Mediation Preparation Matters

Pre-mediation preparation is vital for several reasons. This means the parties are taking a fresh look at the issues the parties haven't seen eye to eye on. This review should include ensuring all  discovery has been updated and necessary depositions have been completed.  Even if the mediation occurs at the outset of a claim or litigation, it is important to obtain all medical records and bills, liens, subrogation claims, repair estimates, photographs, witness statements and any other evidence of damages. By spending the time on this necessary step, the parties can be assured mediation will be more production and much more likely to get this case resolved[1].

Providing this information to the other party(ies) ensures everyone is evaluating the case based on the same information.  Nothing is more frustrating that realizing the opposing side(s) has less than complete information.  This hurts everyone.  This also allows the parties to know exactly how the other side(s) is evaluating the case, so even if a resolution doesn't occur at the mediation, the issues remaining are most often reduced[2].

The Role of Medical Bills and Damages Documentation

Medical bills and records and other items of special damages play a pivotal role in personal injury claims. Having a complete set of records and bills regarding all treatment and even pre-existing conditions help to better support the claims made by the injured party. By providing these documents well in advance, the injured party can demonstrate the extent of their losses and justify their position[3].

Providing a detailed breakdown of these damages helps to create a clear picture of the financial burden faced by the injured party, making it easier for the mediator to facilitate a better resolution[4].

Practical Tips for Pre-Mediation Preparation

1. Gather all Documents Necessary to Value Properly the Case: Collect all medical records, medical bills, liens, subrogation claims, photographs, property damage repairs, and witness statements. Review, summarize and quantify these items.   Organize for easy access by the parties and the mediator at the mediation.
2. Provide Documents to the Opposing Party: Send copies of all relevant documents to the opposing party at least thirty days before the mediation. Update discovery with the court.  This further demonstrates to the opposing party(ies) of being well-prepared and ready to continue litigation if demands are not met.
3. Provide a Settlement Demand: Plaintiffs should certainly consider making a formal settlement demand prior to mediation having completed the evidentiary update and evaluation.  Demands should be in line with realistic assessments of the parties, the damages, liability assessment, and most importantly the venue where the case will be heard. [3].
4. Prepare your client: Often times, clients have never attended a mediation.  Having prepared them on what to expect eases anxiety and helps them better focus on the real issues at the mediation.
5. Pre-mediation submission to the Mediator: Either provide the mediator with a position paper or at least a pre-mediation phone call to alert the mediator to the key differences as they are known, the evidence that is currently available and the posture of the case with the court.  This helps the mediator understand the case and facilitate a more productive discussion[2].

Conclusion

Effective pre-mediation preparation is essential for achieving the best result at mediation. By gathering all relevant information, exchanging this with the opposing party well in advance, and preparing a settlement demand, parties can enter the mediation process with confidence and clarity. This preparation not only helps to streamline the mediation process but also increases the likelihood of reaching a fair and equitable settlement.

References

[1]: Myer J. Sankary & Marco Imperiale, Mediation Before the Mediation; The Important Role of a Pre-Mediation Session, Mediate.com (Oct. 25, 2022), https://mediate.com/mediation-before-the-mediation-the-important-role-of-a-pre-mediation-session/. 
[2]: Jeffrey W. Lasky, The Importance of Pre-Mediation Preparation: How to Prepare Your Client for Mediation, Miles Mediation (Dec. 4, 2024), https://milesmediation.com/blog/the-importance-of-pre-mediation-preparation-how-to-prepare-your-client-for-mediation/.
[3]: Elizabeth R. Feffer, Mediating Cases with Large Medical Liens, Advocate Magazine (Sept. 2023), https://www.advocatemagazine.com/images/issues/2023/09-september/reprints/Feffer-Sept23-article.pdf.
[4]: How to Prepare Your Clients for Mediation, Bullard Law Firm (July 5, 2024), https://bullard-law.com/how-to-prepare-your-clients-for-mediation/.