Follow these 10 mediation tips for great results. Although mediation tends to be less stressful and less formal than going to court, your lawyer will tell you that there are no guarantees that mediation will resolve your case. At the same time your lawyer will want to ensure that going to mediation is a good use of their time, and most importantly, a good use of your time. There are things both you and your lawyer can do to increase the likelihood of settlement.
If you have been injured, you may ultimately end up going to mediation because your lawyer has suggested that this may be a way to avoid a long and drawn out court battle.
Your lawyer knows that you want to get on with your life. At the same time, your lawyer knows that if you have been injured, you want to ensure that any settlement that is reached is fair to you. You don't want to settle at any cost, but you want to settle if a sensible agreement can be reached.
At Hemminger Law Group we prepare your matter for mediation and include you in that process. We do this because this is what gets best results.
Spend time with your lawyer preparing for mediation. Make sure you have organized your thoughts and have thought about what the results of mediation would be if you were to be completely satisfied. Know the range of damages (that is the funds paid) to cases where there have been similar injuries or circumstances. Make sure you have all the documents you need and reports ready to go. For example, make sure you have evidence for all of the injuries you claim. Your lawyer will make sure that you have met to describe in detail the mediation process.
Preparing a mediation brief is a great way to ensure you have come prepared. At Hemminger Law Group we work with our clients to prepare a mediation brief that includes an exact lay out of our client's position. Prior to going in, your lawyer will know the range of damages they are asking for. They will also have an idea and will anticipate what the other side's view is of the case.
A well prepared mediation brief will have the following elements:
Background information - this relates to important information and background about the parties. In the personal injury context, this will be the date of the incident, the age of the claimant, the injuries suffered and other important information such as how the injuries have affected that person's employment or lifestyle.
There will likely be a brief description of the case law that will likely be relied upon if the matter goes to trial. Finally, there will be a summary setting out all of the damages claimed in a succinct way. For example the summary may look like this:
Pain and suffering: $80,000
Loss of earnings: $123,000
Loss of future earning capacity: $225,000
Cost of future care: $65,000
Out of pocket expenses: $3,276.00
Plus costs and disbursements.
Of course the above is a sample and every case is different, but you get the idea.
The likelihood of settlement is much greater if all the information is gathered in advance.
For example, you want to ensure that all income tax information is gathered, all medical evidence, and any opinions relating to liability. Maybe your case needs an expert's opinion relating to motor vehicle speed and damage upon impact. This may be because the lawyers for the insurance company are denying that the injuries suffered could have been as a result of the impact due to the stated speed of the vehicles. If you have an expert that supports your case, it is best to have that evidence prepared in advance of mediation.
It makes no sense to go to a mediation if the parties present do not have the authority to settle. So, if someone is a representative of a company and cannot make a decision binding the company, then that is the wrong person to be in attendance. The right person is the one who has authority to settle, that is that they are allowed to say "yes" or "no" to an offer without having to talk to their boss first.
Okay, we now this probably sounds flaky, and yet, it is totally worth saying. We use the forgiveness practice of Ho’oponopono? It is a forgiveness meditation. We suggest that you do it, even if you can only stand it for 5 minutes per person. We suggest you do this for 10 minutes twice per day for at least 10 days prior to mediation.
You simply repeat these words with intention: I am sorry, Please forgive me, I love you, and Thank you.
You do this while focusing on the person with whom you are in conflict. The peace it brings is amazing. As I write this, I have done this practice on an almost daily basis for a year now. The results have been profound in all areas of my life. I am a better spouse, parent, lawyer, business person and employer.
Get rid of the using the word “But." This is because the word "but" tends to erase anything you have said before it. It is known as the GREAT ERASER in dispute resolution.
Just think about it. If someone says "you are a great friend but . . . " you know to brace yourself for what is coming. We can almost guarantee that by the time the person has told you the stuff after the but part, you have forgotten all about the person saying you are a great friend.
It is a safe bet to stay away from the word “but” in any of your conversations where you are trying to resolve a dispute.
Look at these conversations:
“I think you are making an important point because you are worried about me being able to afford my care in future, BUT I am going to be fine and I know it . . . .”
“I think you are making an important point because you are worried about me being able to afford my care in future, AND I am going to be fine and I know it . . . .”
Do you see how each of these can start different conversations? In the first one the listener may feel on the defensive and yet, the speaker may not have intended this at all. In essence, if you want someone to hear what you are saying, just change the "but" for "and." The likelihood that they will hear what you have to say will increase dramatically.
Just because mediation is less stressful than court, does not mean it is not VERY DIFFICULT and challenging. It is hard sometimes, and I mean really hard, to hear the other side’s perspective. If you think they are dead wrong about something, do not interrupt them. Let the other side say their piece.
Before jumping in with your response, take a breath. Also, ask if you may respond before doing so. A skilled mediator will allow you to have your say before the day is through. So, you will not have to worry about jumping in. Know you will get to have your say. Taking at least a long deep breath (although challenging in the moment) will keep the conversation at a calmer level.
Remember that people can see your face. Think about how you present.
Shaking your head or rolling your eyes when another person in the room is speaking, gets the process nowhere.
Remember that you are there to put an end to your case with a fair result. If someone is saying something that you cannot stand (which will almost certainly happen), do your best to remain still in your facial expression. Sarcastic comments or facial expressions moves you farther away from your goal.
Sometimes I go to a mediation where the lawyer representing the client does not seem to have a very clear idea as to the client's position on all of the issues. This can waste a lot of time.
It is important that your lawyer is clear with you about where the case is going and what your position is. At the same time, although you want to ensure that you have a clear idea as to where you stand on all the matters being mediated about, you also have to remain open to other ideas. For example, maybe the lawyer for the insurance company has some information that you or your lawyer were not aware of and you need to take that information into account.
For example, maybe you have a case where you have slipped on a spill in a mall. Perhaps the lawyer for the insurance company for the mall has detailed information showing that the location of the spill had just been checked by maintenance staff not 5 minutes before the incident and that the area was clear. They also have some evidence, that the spill may have come from the bags you were carrying. Depending on what your lawyer says, this will likely affect your chances of success at trial. It will be important that you consider this information prior to digging your heels in with respect to your position.
Think about the cost if you don’t settle.
In our experience, in virtually all mediations we have attended (and that is a lot of mediations), there comes a moment when it seems like settlement is not possible or highly unlikely. At that point it all seems useless and it is tempting to simply stomp out the door and leave the process. Yet, sometimes when we pull back and look at the cost of not settling (continued stress relating to the case, ongoing litigation, or a legal action being started) it is important to review the various settlement options to see if we can live with the results.
Having said that, we have to remember that it is important not to settle at all costs. Sometimes the offer coming from the other side does not seem fair in any way. It is at those times that proceeding to the next step of the litigation is the reasonable route.
Although mediation tips vary from case to case, your lawyer will be able to recommend whether or not settlement is a good idea in your circumstances.
To obtain a referral for a really awesome mediator, speak to one of the lawyers at Hemminger Law Group or contact the BC Mediation Society.
Written by Val Hemminger, lawyer and mediator
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