C. Convey relevant information to the defense promptly
Insurance adjusters need time to as-
sess and process information relevant to the appropriate amount of damages. The sooner you convey this information to them, the better prepared they will be to put a realistic number on the table in mediation. The element of surprise cre- ates no advantage in mediation because both sides are able to delay responding without adverse consequences. Surprises just slow down the process.
D. Develop a plan for achieving your goal
The objective in mediation is to pres-
ent information and analysis that allows the other side to consider its risks and, consequently, to agree to settle on terms acceptable to your client. The more com- prehensive, respectful, and skillful this presentation is, the more likely it is to prompt the defense to shift its position into an acceptable range.
In addition, strategize with your client
regarding his or her role in the process. While lawyers and insurance adjustors pride themselves on being cool-headed, rational thinkers, we are all infl uenced by emotions. Thus, when the time comes to justify your claim for damages, there may be a distinct advantage to allowing your client to explain to the defense what happened and what is needed to be made whole. Audio and visual aids can be very
helpful. PowerPoint presentations make it easy to convey information fully and effectively. Consider the possible impact of video-
recorded first-hand statements from physicians, family members, or others who may have information relevant to damages. They do not need to be physi- cally present to have an impact.
E. Help the mediator prepare to serve If you believe that having advance
information on damages will help the
mediator guide the process, suggest that the parties submit confidential state- ments even if the mediator does not require them. Use this statement as an opportunity to brief the mediator on any novel technical or legal issues that may require background reading. You should set forth your point of view on these is- sues but stop short of translating these views into dollars and cents. There is no advantage to committing yourself to a particular opening demand before any information is shared at the mediation table. While it may help the mediator to know that you have a fi gure in mind and are prepared to share it with the other side, it will not help the mediator to know in advance what that number is.
Rule #2: Establish the Negotiation Framework
A. Don’t be afraid to start! Parties often waste a great deal of
time wrangling over which side is going
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Ellicott City 3570 St. Johns Lane 410-461-9500 Laurel 545 Main Street 301-776-2000
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Arthur E. Kurlanzik, M.D. Neurological Services
26
Trial Reporter
Winter 2009
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