Mediating Personal Injury and Medical Malpractice Cases: Our Firm’s Best Practices
As I was staring out the window at Cobb Parkway yesterday, waiting on Nicholas C. Moraitakis to return to our room to discuss further negotiations in a medical malpractice case we were mediating, it seemed like a good time to compile some of our firm’s best practices for mediation:
McArthur Law Firm’s Best Practices for Personal Injury and Medical Malpractice
- Choice of Mediator: we usually allow the defense to choose the mediator so that it’s someone they trust, respect, and will listen to. The choice of mediator is rarely going to affect what we think about our case or our client’s willingness to settle. In practice, this usually works by allowing the defense to suggest a few mediators they will agree to, and our choosing from among folks the defense suggests.
- Pre-Mediation Demand: we typically make a demand prior to mediation so the ball is in the court of the defense when we arrive. This gives the defense an idea of how we value the case and allows them to cancel a hopeless mediation or get more authority, if needed.
- Materials for the Mediator: prior to the mediation, it’s important to provide a concise summary of your case to the mediator, including a summary of the damages and the status of negotiations. This can be as simple as sending the mediator a copy of a well-written demand you’ve made but may require the creation of additional materials if depositions have occurred since your demand was sent or if you anticipate additional discovery after mediation and need to preview this for the mediator.
- Opening with Value: we rarely do an opening presentation at mediation. But if we do, the presentation’s focus is on highlighting a few things: (a) heat in the case, including video clips of damning deposition testimony or demonstratives we’ve created for trial (things an adjuster in the room may not have seen before), (b) unseen evidence we expect to be presented at trial (for example, videos of fact witnesses previewing their testimony), and (c) if discovery is closed, video clips of our experts teaching and describing the critical pieces of our case.
- Preparing Your Clients: we always prepare our clients from the start that: (a) the first offer at mediation is going to be an insult and they should not get let down early in the day; (b) mediation is a process and (usually) we need to play the game and see what the defense has to pay; and (c) we do not need to feel pressure to settle at mediation – we often ask for more time to consider an offer or ask the defense to get authority on a demand that we intend to leave open for 30 days.
- Post-Mediation Offer of Settlement: after an unsuccessful mediation, we frequently send an offer of settlement pursuant to O.C.G.A. § 9-11-68 (if not already triggered) with our bottom-line number. This puts pressure on the defense to settle the case for a number we would accept, if they can get authority.
We hope these insights into our firm’s best practices for mediating plaintiff’s personal injury claims and medical malpractice claims in Georgia serve as valuable tools in your future mediations. If you or your firm would like to discuss a potential case with our firm, please reach out to us, and one of our attorneys will be happy to talk to you in detail about your referral. We handle cases involving serious catastrophic injuries or wrongful death, and we fight to secure significant compensation for our clients who were hurt or killed because of another’s negligence.
