Expert Mediation Articles of Interest

Introduction by the Author(s)

"Personal Injury Mediation" by Joel P. Franciosa

Preparation is the key to success, whether in the context of a client meeting, negotiating a business deal, going into a deposition or trial, or arguing an appeal.

But preparation is especially important with respect to the mediation of a personal injury case. In fact, preparing a client's case is only half the picture. A talented advocate will make sure the other side is also prepared.

This advanced work is not about helping an opponent score points. Rather, it's about making sure an adversary has all the information necessary to justify an appropriate settlement. How does an attorney properly prepare for a successful PI mediation? The answer depends on whom the client is.

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(Published in California Lawyer, August 2010)

"Mediation of Catastrophic and Complex Claims" by John C. Trimble

Despite the prevalence of mediation, many lawyers and their clients approach mediation without the level of forethought and preparation necessary for the most successful outcome. There is no greater need for preparation and forethought than in the mediation of catastrophic and complex cases.

For purposes of this article, “catastrophic” cases will refer to those cases involving a very substantial bodily injury, wrongful death, or property damage claim with or without disputed liability and with one or two defendants with reasonably harmonious views of liability and damages.

A “complex” case will describe cases that involve a large exposure, multiple defendants, cross-claims, and third-party complaints for indemnity, coverage issues, and other obstacles to settlement.

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(Published in For The Defense, August 2009)

"What Plaintiffs Really Want" By James F. Bleeke

As defense attorneys, we often focus most of our efforts on assembling the most crucial facts and the strongest legal arguments to build defense themes for our clients. We hope that the strength of our thoroughly analyzed positions and our resolve to fight for our clients ultimately will prevail, either by persuading plaintiffs to capitulate or at least settle cases for amounts that our clients deem reasonable. In the absence of settlement, we rely upon judges and juries to recognize the justice embodied by our well-constructed defense themes.

However, the reality is that the vast majority of our cases settle for reasons that may not hinge upon the strength of our legal or factual arguments. For those of us defense attorneys who have also handled the occasional large plaintiff’s case, the factors that influence settlement decisions by the person bringing the lawsuit often become more apparent.

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(Published in For The Defense, December 2009)

"Choosing a Mediator Within Pre-Suit ADR Constraints" By B. Rose Miller and John Horn

The time has come to give credit where credit is due. This article salutes the role of the mediator, who is vital to the success of any pre-suit alternative dispute resolution (ADR) program. Pre-suit ADR has vaulted onto the landscape in recent years as an increasingly important tool to control legal costs for in-house law departments, third-party administrators, insurers, and even outside defense counsel.

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(Published in For The Defense, August 2009)

"Preparing Your Client for Mediation" by Hon. Kevin W. Midlam and George D. Calkins

Once, when President Ulysses S. Grant was visiting Scotland, his host gave him a demonstration of a game, new to Grant, called golf. Carefully, the host placed the ball on the tee and took a mighty swing, sending chunks of turf flying but not touching the ball. Grant quietly watched the exhibition with interest, but after the sixth unsuccessful attempt to hit the ball, he turned to his perspiring, embarrassed host and commented: "There seems to be a fair amount of exercise in the game, but I fail to see the purpose of the ball."

Like President Grant, a client who is inadequately prepared for what to expect at the mediation, in terms of the process, the players, the ground rules, and the potential results, may fail to fully comprehend its purpose and consequently may be unable to participate in it actively, meaningfully, and profitably.

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(Published by Pepperdine University, School of Law - Malibu, CA, 2004 - Summer Dispute Resolution Skills Workshop)