7 Things Lawyers Should Bring to Mediation
Be sure to stick these 7 things in your bag when you pack up to go to mediation. Number 5 may surprise you – it did me!
If possible, bring old-fashioned paper copies of the documents. If you are short on planning time, you can always pull up the documents you need on your computer. But having the paper copies does two things: it puts the best documents at your fingertips for faster retrieval, and it lets me easily take a document to the other side to discuss it (which beats lugging your laptop back and forth!).
___ 1. Key Documents.
When I was mediating a case recently, the defense lawyer pulled out a photo of the plaintiff’s car after a rear-end wreck. The car showed no visible damage. The photo was a tangible reminder of the evidence that would be presented at trial if the case did not settle.
Every case has a few, critical documents that tell your story. I call them “hot docs.” Bring your hot docs with you to mediation, to show the mediator and also to remind the other side of the evidence that you will be presenting to the jury. At important points in the mediation, I am going to want to talk to the other side about your hot docs.
___ 2. Damages Charts and Summaries.
Damages will be a key topic at mediation. Pack the important documents that you will use to show the jury what the damages should be. For example, if you are a plaintiff and you have a chart that details the medical bills, or a spreadsheet that breaks out the business losses by year, stick that in the bag.
If you are the defendant and your expert believes the plaintiff has overstated his/her damages, include the expert’s calculations. Obviously, the other side does not have to accept your numbers, but it gives clarity if everyone can see the numbers in black and white.
___ 3. Key Medical Records.
In an injury case, the medical records are critical. If the records are voluminous, you do not need to bring the entire set, but do bring the ones that are most important to proving your contentions, or disproving what the other side claims. If any question arises about the injuries, when they were diagnosed, or what was diagnosed, you can whip the record out and show me, and then I can make your points to the other side.
___ 4. Copies of Important Cases.
If your lawsuit involved a dispute about what law applies, you probably have researched or even briefed the legal issues. If you rely on a key case or two, bring a copy with you.
___ 5. Settlement Discussion Letters and Emails.
One of the most surprising things I have learned as a mediator is that the parties often disagree about what the last offer or demand was before mediation. The plaintiff thinks the defendant offered one number; typically the defendant believes he offered less, although to my amazement, on more than one occasion I have seen the reverse.
As the mediator, I am not interested in having the parties get bogged down in arguments about who is right about what happened before mediation, especially given that the numbers that flew back and forth earlier are not going to last past the first few minutes of the mediation.
However, it can be helpful to me to have those letters or emails. If the other side has a different idea of where the negotiations stand, then your first move may seem surprisingly high to low. If I have the letters, I can soften the blow by laying the letters out to explain to the other side that you thought the offer/demand was $X (the amount shown in the letter) – so your counter is in good faith. Having the correspondence helps us keep the negotiations on track, but still in the range that seems fair to you.
___ 6. A Calculator.
Your phone calculator will do, but I find it easier to use an IPad or calculator. At BAY Mediation & Arbitration, where I mediate, they provide calculators in each conference room.
___ 7. Lien Information.
If your client has large liens that could get in the way of settlement, bring the contact information for the lienholders. If you need to discuss a potential settlement offer, you will have the names and numbers handy.
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