Preparing for the Mediation:
Mediation is a voluntary process where the plaintiff(s), defendant(s), and their attorneys join together with a neutral mediator. The mediator’s goal is to get the parties to resolve the case for a mutually agreeable settlement number. The mediator will go back and forth between the two parties communicating messages, offers, and counter offers. The mediator hopes to convince everyone involved of the benefits of a mutually agreeable settlement instead of going to trial.
One challenge we had in preparing for mediation was putting together enough evidence to project what Josh’s future medical bills would be throughout the course of his lifetime, as well as his likely career aspirations and educational attainment. We felt that these were necessary to give to the defense for a proper evaluation of the case. But some of our medical experts were not willing to put those types of things in writing. We had to rely on their deposition testimony instead.
Our neuropsychological expert gave a significant amount of testimony regarding how far Josh would be able to go in school. Our psychiatrist expert gave extensive testimony on the impact of Josh’s injuries on his function and performance for the rest of his life. With these testimonies, our game plan was to get a “demand letter” sent to the defense lawyers 30 days before the mediation. This would outline all of our claimed damages in details and state a specific number for which we would settle the case. We were successful in have this information prepared and sent to the defense just in time.
The defense then agreed to the mediator we wanted, Mr. Robert Hanson, who is known as the best of the best throughout the state. I had used him for a previous case and was impressed with his skills. We booked Mr. Hanson months in advance, and then my wife and I had to prepare ourselves for the mediation.
The Day of the Mediation
During the mediation, we were in our office’s conference room and the defense was on another floor of the PNC Building. We never saw anyone from the other side of the mediation; it was simply back and forth with Mr. Hanson, the mediator. We eventually agreed to reduce our demand significantly from where it had originally been, which was tough to do. It did however cause the defense to raise their offer to a more reasonable amount and we were moving in the right direction.
The “decreased demand/increased offer” went back and forth for a long period of time. This was an all-day mediation session and it eventually became clear that we would not be settling the case that day. My wife and I were not happy about this, but we did make some progress that day.
The following Monday we were told that the defense would be coming back to us with a new offer. Mike received a call from the mediator saying that we would be receiving a letter with an offer from the defense.
When we received the letter, it had an offer that was very difficult to walk away from, but it also contained a stipulation with a broad confidentiality section.
The Fight Over the Confidentiality Clause
When a case is settled with a confidentiality agreement, the confidentiality usually related to the amount of the settlement, but both sides are still able to discuss other aspects of the case. In our case, the defense’s initial proposed confidentiality clause was much more detailed and would prevent anyone from my family from ever discussing that the incident had ever happened at all. This just wouldn’t be possible for us to do for the rest of everyone’s lives.
Our response to the defense was that we were willing to accept their offer but the must “tone down” the confidentiality agreement to something that would be more reasonable.
In my own personal experience, the confidentiality clause is usually not a deal breaker and the parties are able to work something out.
We heard back from the defense a few days later that our request may actually be a deal breaker – they wanted broad confidentiality language preventing us from ever talking about the incident. This just was not possible with an injured ten-year-old and three young siblings.
As we were getting closer to a trial date, it became clear that the confidentiality would not be agreed upon, therefore the entire settlement could not be agreed upon. Mike then called the defense lawyers and asked them to discuss the confidentiality issue. After negotiation, the final version of the confidentiality states that my family and I would not disclose the value of the settlement or identify the defendants. We agreed and signed. It was finally over.
Lesson to be learned: Going into a mediation with an open mind, being willing to listen to the defense’s offers, and engaging in a fair “back and forth” is essential.
If your case ends up in mediation, it is important to remain open minded. You have to be willing to consider the offer and how the defense views your demand. Everyone has risk in taking a case to trial.
The best thing to do is approach mediation with an open mind and be willing to listen and respond accordingly.