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Alternative Dispute Resolution and Mediator’s Strategy
Mediation Resolution Services Defense Checklist:
I get it that in some mediation resolution (alternative dispute resolution) cases you do not want to put your best foot forward. Sometimes there are strategic reasons and sometimes economic reasons. The following alternative dispute resolution checklist assumes that you do want to put your best foot forward to resolve the case.
• The adjustor should attend the mediation in person or by zoom.
• The IME should be completed and served on the other side with enough time for them to reevaluate the case if necessary.
• Depose the plaintiff.
• Consider deposing key treating physicians.
• Consider deposing key liability witnesses.
• Do not make the brief confidential unless you have agreed with the other side in advance.
• Briefs should be exchanged with enough time for each side to re-evaluate the case if necessary.
• Brief any novel legal issues.
• Require that the plaintiff responds to the discovery well in advance of the mediation.
• Exchange Howell numbers well in advance of the mediation.
• Consider early exchange of experts.
Some mediation resolutions fail because there is a legitimate dispute as to value and/or liability – this is what trials are for. Many cases do not settle because one or both sides put hope before reason and do not get realistic until later in the case. Lack of preparation is the most common reason that cases do not settle. One side or the other assumes (or hopes) that key evidence will be in their favor but the evidence has not been nailed down.
Alternative Dispute Resolution Mediation Fees and Costs
Mediation Resolution Rates
Are billed at the rate of $400.00 per hour [effective January 1, 2023], including one-hour pre-mediation preparation and time in the session. There is no billing for administration costs and travel. The hourly rate is divided equally between the parties. There is no increase for multiple party cases. Each party is responsible for a deposit of $350.00 to be credited against the final bill. The deposit is fully refundable in the event of cancellation.
Nail Down Liability Before Mediation Resolution Services
Plaintiff Checklist – Personal Injury
As I have suggested under the defense checklist it is important to decide if you want to put your best foot forward prior to mediation. The decision on how to prepare and how much to prepare depends on the case value. It may not make much sense to spend significant time and money on smaller cases. However, even if you are hoping for a case value in the high five figures or low six figures preparation makes all the difference.
Nail down liability. When the case involves disputed liability do the work before mediation resolution services. This means deposing liability witnesses and retaining an expert. Be prepared to share enough to convince the defense that you will prevail on liability or that they have substantial risk.
Do not mediate under the threat of a pending MSJ. Nothing helps get a case settled like prevailing on an MSJ.
Be sure you have a credible report on medical causation and as to the nature and extent of the injury and disability. Medical records that document treatment but do not specifically address these issues do not do much good.
Be sure you have obtained any relevant prior records that deal with the same injured body part. If you are looking for big money be sure you have the defense IME before the mediation so you can evaluate your risk. In some cases, it is best to depose the IME early. This can be done anytime after the IME has been conducted.
- Retain an expert on lost income/earning capacity. Consider vocational and economic experts.
- Be prepared to address your trial track record. If you don’t try cases hook up with someone that does!
- Know the Howell numbers.
- Know the liens and costs.
- Have significant lien holders on telephone standby. As the mediator in some cases, I will help you negotiate the liens.
The Goal is to Settle the Case – at the Mediation.
Workers Compensation Checklist For Defendant
We can assume that if a workers’ compensation case is going to mediation (alternative dispute resolution) it likely involves a case of significant exposure. It should go without saying that the goal of mediation in the comp arena is to settle the case – at the mediation.
Creative structured settlements can help facilitate getting the job done at mediation. I recommend that you have a good structured settlement representative attend the mediation.
If the settlement is going to include an MSA that requires CMS approval – approval should be obtained prior to mediation. Otherwise, you should have the authority to accept the risk.
When the case involves vocational experts be sure both experts have completed their workup. When apportionment is at issue be sure all supplemental reports have been obtained along with appropriate depositions.
- Be sure the adjuster with adequate authority attends the mediation. Include the excess carrier when necessary.
- In cases where board approval is required know the timeline for obtaining final approval.
- Employers should be available by phone.
Let’s settle the case