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Mediation is a procedure used by parties and their lawyers in a dispute where the parties get together with a mediator to discuss the strengths and weaknesses of a case and then engage in settlement negotiations until the parties either reach a resolution of the dispute or an impasse. Mediation can result in the parties reaching a settlement of a civil dispute without the parties incurring the costs of going to trial and the risk of loss associated with litigation generally. Once the parties agree to mediate a dispute, it is up to the parties to select a mediator to preside over the mediation. A mediator is a person that is typically trained in the art of mediation and who presides over the settlement conference.

There are a number of things a plaintiff should consider doing in order to prepare for a successful mediation.


A. Stage One: Prepare the Demand Letter

In a civil case where one party is pursing a claim for bodily injury against another, the adverse insurance carrier defending the defendant has to be assured that the plaintiff has a case in the first place before the insurance carrier will be willing to put significant money on the table to resolve the claim. If the insurance company believes that plaintiff’s case is weak or that the attorney for the plaintiff is inexperienced or otherwise unprepared, the value of the case will be substantially reduced.

In order to maximize the monies recoverable through mediation, the insurance company has to be presented with the evidence prior to the mediation regarding the strength of the plaintiff’s case in order for the claim representative to be able to properly evaluate the claim. In order to do that the process of negotiations begins with the preparation of a demand letter to the insurance carrier together with the supporting documents that documents each aspect of the claim. For example, in the case of a personal injury arising from an auto crash, that would include, but not be limited to your attorney providing copies of the following to the insurance carrier, namely:

1) The Police Report;

2) Traffic Citation;

3) Record of an entry of a plea of guilty to the offence charged and/or judgment of conviction;

4) Photographs of the scene of the collision and/or the vehicles showing the damage incurred and the force of impact involved in the crash;

5) Photographs of any injuries including any scarring resulting from the injuries incurred;

6) Copies of the plaintiff’s medical records and billings for medical treatment;

7) A physician’s letter addressing the need for future treatment or therapy and the projected cost pertaining thereto;

7) Verification of the plaintiff’s lost wages, salary and income and in the case of any projected losses pertaining thereto, evidence of a loss of future earning capacity;

8) Evidence of any permanent impairment and/or disability;

9) Photographs of the plaintiff’s injuries including scarring; and,

10) Any other out of pocket losses incurred by the plaintiff as a result of the injury.

The demand letter should include reference to the applicable law where the decision occurred setting forth the responsible party’s responsibility for the injuries resulting from defendant’s acts or omissions that caused the accident along with local decisions and verdicts of similar cases in the local venue where the case is pending. Comparable jury verdicts and settlements in the local venue help demonstrate the reasonableness of the plaintiff’s demand for compensation pertaining to the injuries and damages incurred as a result of the Defendant’s negligence.

If or when the insurance company fails to provide the plaintiff with an adequate proposal in response to the demand letter prepared by Plaintiff’s lawyer, the plaintiff should be prepared to file a lawsuit.

b. Stage Two: File the Lawsuit!!

In order to initiate a lawsuit, the process begins by filing of a Summons and Complaint. Why file a lawsuit when all you want to do is negotiate and settle the case? The reason you should proceed by filing a lawsuit is to demonstrate the plaintiff’s resolve in obtaining a jury verdict if the defendant’s insurance carrier is unwilling to negotiate in good faith. However, look at this from the insurance carrier’s perspective. Why would they want to give a person a dollar to resolve a dispute if they believed a quarter will do the job? Why would they give a person a quarter if they believed that a dime will do the job? The insurance company is going to have to assure itself that the plaintiff is (1) worthy of a significant settlement before rendering a significant offer to resolve the claim and (2) the plaintiff’s lawyer is prepared and able to obtain "the" verdict if the matter proceeds to a jury for its deliberation. If the insurance carrier believes the party is unprepared or unwilling to proceed to trial, the value of the case will be seriously under valued by the insurance company\

If the insurance carrier refuses to negotiate in good faith early in the case, filing suit demonstrates the resolve of the plaintiff in pursuing their legal rights and remedies all the way to trial if necessary in order to get justice. This demonstrates a resolve and ability to obtain a verdict to the insurance company which the insurance company will take into consideration when evaluating the case concerning its settlement posture.

C. State Three: Conduct your Discovery

In serving a copy of your complaint and summons, you should also send out your first set of interrogatories, requests for production and requests for admissions. Once the defendant files an answer, and if the defendant alleges any affirmative defenses against your complaint or denies liability for the cause of the accident, the plaintiff should prepare and serve a second set of interrogatories and requests for production to flush out the facts and documents that the defendant contends supports the defendant’s allegations set forth in the defendant’s answer claiming that the plaintiff is not entitled to a recovery.

I also recommend taking the deposition of the defendant if the defendant denies responsibility for the cause of the collision to demonstrate to the defendant’s insurer and attorney of the weakness of the defendant’s position. Once that is completed, you’re should be ready for mediation.


Before a mediation is conducted, the parties are requested to submit their mediation statement to the mediator to help educate the mediator regarding the issues presented in the case. Your counsel should have received by now a copy of all of your medical records and billing statements from your medical providers. You should have documentation from your treating physician as to what your future treatment will be and the estimated costs pertaining thereto. You should also have documentation from your employer as to what your lost wages, salary and benefits are as a result of your injury and a good faith estimate of what your future loss of earning capacity will be in the future if you have any and, if applicable, evidence regarding your future loss of earning capacity.

Now it’s time to prepare the mediation statement.

The statement is prepared to help the mediator get an understanding regarding the strengths of your claim. The medical records should have been summarized by your attorney or his staff and a copy of same (or portions thereof) sent to the mediator. If the mediator is aware of your treatment and condition, the mediator can be an excellent advocate on your behalf in arguing your case to the defense counsel and defendant’s insurance carrier. The statement should follow the pattern of your initial demand letter updated, of course, with your up to date medical treatment references and future medical treatment needs and documentation regarding your lost wages, salary and income and future earning capacity figures and any other out of pocket damages.

The statement should also outline the effect your injuries have had upon your Average Daily Living (ADL) tasks as well as a list of activities both vocational and avocational (recreational) that have been diminished as a result of your injuries. Reference to the level of pain you are suffering from as far as its intensity and the type of pain you have can also assist the mediator in presenting your case to the defendant’s insurance carrier and/or attorney.


When you are preparing for mediation, it may be probative to prepare a multi-media presentation to help you "show and tell" your story to the insurance carrier’s claim representative in order to underscore what they can expect will happen if this matter goes to trial.

The multi-media presentation includes more than just a "Power Point" presentation setting forth your damages and highlighted portions of the medical records that explain the limitations and restrictions you have due to your injuries, I have found it helpful to video record the statements of family members, friends, co-workers and supervisors and other "before and after" witnesses who can tell "your story" to give the defendant’s counsel and claim representative a better idea as to what the jury will be viewing in the event this matter goes to trial. It can have a powerful effect upon the negotiation conducted during mediation.

During one mediation, defense counsel took a look at the audio-visual presentation we had prepared, and defense counsel pulled me aside and confessed that in his opinion, the claim representative did not bring "to the table" enough money to settle the case. He asked if we could break off the mediation and reconvene in the next week or so to give him time to get a vice-president of claims to the mediation with higher authority in order to settle the case. The audio-visual presentation had powerful recordings of statements of a number of witnesses who were refuting the defendant’s positions in the case particularly the defendant’s expert witnesses. The multi-media presentation was instrumental in convincing the defendant’s insurance company that their settlement position was unreasonable, and after reconsidering their position, a settlement was reached. The mediator told me that the audio-video multi-media presentation was the tactic that won over the hearts and minds of the defense, and went a long way in getting the insurance company to properly evaluate the claim and getting the case resolved.

If you or a loved one have been injured due to the negligence of another, you should contact an experienced trial lawyer for an initial free consultation. Boise Personal Injury and Wrongful Death Attorney Trial Lawyer Alan Morton has over 34 years of experience in helping clients obtain compensation for their injuries and damages they have incurred due to no fault of their own. If you would like to schedule a FREE initial consultation with Mr. Morton, give him a call at 208.344.5555, toll free at 888.716.8021 or complete an online contact form. Mr. Morton would be happy to meet with you at his office or your home, workplace, hospital or any other convenient location to help you better understand your legal rights and remedies.



Alan Morton
Advocate for Justice/Trial Lawyer