What To Submit to the Mediator

The Mediation Process – What To Submit to the Mediator

My assumption is that if the lawyers submit material to me, they expect me to read it. In fact, I will have, by the time I receive materials, committed to counsel that I would read everything that is sent. It should go without saying, however, that counsel should not take the lazy way out by just attaching numerous depositions and lengthy medical records without bothering to cull out what is necessary for me to read. Ordinarily, not more than a few pages of deposition testimony is critical, and certainly everyone would agree that 50 pages of laboratory reports from a hospital record are not likely to produce meaningful information to a mediator. It is better practice to pull the relevant pages from records and depositions and attach them as exhibits to a memorandum that explains their significance. Complete copies of the records can be made available at the mediation if other parties want to amplify or parse what has been submitted.

Just as an example, in the typical personal injury case, physicians on both sides will have reviewed extensive medical records and the reports of these experts will summarize past and present treatment and opine on what will be required in the future. Only in the rare case will it be necessary to provide the complete volume of records when they have already been summarized by the experts. Assuming memoranda are shared, the experts will pretty much define the injuries and provide counter arguments to each other.

I do not object to reviewing volumes of records where necessary, but counsel should try to synthesize exhibits to what is necessary for an understanding of the issues to be compromised.

Finally, if negotiations have taken place, I would like to be advised, and if not, plaintiff should at least make a demand so that the defendant(s) have some idea what expectations are. In that regard, making settlement demands prior to mediation that are clearly outside the range of realistic numbers can have a chilling effect on the mediation before it even starts. Some insurance carriers pay little attention to demand numbers, but some become offended to the point where they shut down the process. I might also add that making an outrageous demand can produce client problems for plaintiff’s attorneys. I often hear plaintiffs ask their lawyers “Why are we coming down so much?”