Preparing for Mediation
The law clerk plays a vital role in preparing a file for mediation. As you will know, a mediation is a critical step in a proceeding. It is usually the first (and often the last) opportunity for the parties to attempt to settle the case. All lawyers conduct many more mediations than trials. It is my role to assess the strengths and weaknesses of our case and the defence case and to make the critical decision at the mediation “Is this a case I want to take to trial?”.
My mediation efforts involve enormous amount of work – largely by my law clerks.
The following will be some tips I hope you will find useful as you go about this critical responsibility.
1. Consider Whether the Lawyer will be doing a PowerPoint Presentation
PowerPoint can be a very effective tool at mediation if used appropriately. It can also be boring and ineffective. The lawyer must feel comfortable in using PowerPoint. I have achieved a great level of comfort largely through the effort of my clerk Judy Roth. If you are not yet trained in a software presentation package such as Microsoft PowerPoint, you should approach your principals for training.
It is my experience that the law clerk will usually come to understand the format the lawyer likes to use for PowerPoint. As a result, the clerk might even consider doing a draft PowerPoint presentation with little input from counsel. It should be identified early on if PowerPoint is to be used at the mediation. There is a great deal more preparation involved on the clerk’s behalf in the event he or she is to do the presentation. Such things as video witness interviews, scanning of documents and photographs etc., will all have to be considered.
2. Anatomical Drawings
Again, this is very much akin to trial preparation. Consider whether or not the lawyer will wish to spend the resources on securing either customized anatomical drawings or downloading some computer images from a program such as LIDO. Remember that a lead time of usually a month is required for anatomical drawings. Assist in making arrangements with your medical illustrator to secure authority for the accuracy of the drawings.
Consider whether additional medical appointments will be required. Secure medical appointments sufficiently in advance of the mediation as to have the reports available two weeks before the mediation. Will up to date medicals be required from treating practitioners? Have all treatment records been secured and summarized? Significant medical reports delivered at the last minute undermine the effectiveness of the mediation. Insurers will argue new reports leave them no opportunity to assess, let alone challenge new opinions. Some will cancel the mediation.
4. Treatment Chart
I find treatment charts to be of immense use in preparation of my mediation memorandum. If possible, a treatment schedule in draft form should be prepared before the lawyer prepares his or her mediation brief. They are particularly useful in chronic pain cases and those cases which are relatively old. They provide a very useful guide to the lawyer in terms of amount, type and chronology of treatment.
5. Home Visit
I like to visit the homes of my clients before mediation. I recently attended the home of a woman disabled with fibromyalgia. I had the great joy to meet her young four-year-old twins. I was struck by the extent to which the twins went to their grandmother as opposed to their mother for their everyday needs. This underscored for me the extent to which the entire family had been affected by this tragic illness. In addition, we found photographs on the fridge and other sundry assistive devices which the client simply had not thought important to tell me about. In another instance, I attended a client’s home in preparation for trial (the principle remains the same) and discovered this huge three-foot diameter ball in her living room. This was something which the client used as part of her exercise regime to help her with her chronic chest pain from her post-thoracotomy pain syndrome. In addition, she had other boards and devices which she used as aids in her exercise regiment. Again, I ended up bringing all of these devices to trial and had her demonstrate to the jury how she used the devices. The jurors all stretched and strained to watch every painful moment of her exercises. These can be scanned in as photographs or brought to the mediation in appropriate cases.
6. Have an Up to Date Specials Calculation
This might entail securing an income loss report to the date of the mediation and having details of out-of-pocket expenses.
Ensure that the research needs have been identified before the mediation and that up-to-date case law is included. I find that defence counsel often ignore this aspect of the case. It can be critical. Many cases proceeding to mediation involve settlement of accident benefits. Often times treatment expenses both past and future will be at issue. Insurers typically rely on DAC reports which state that massage therapy, chiropractic care and physiotherapy is not “reasonable and necessary” because none of them play a curative role. Time and time again case law at the Financial Services Commission and elsewhere has stated that treatment need not have any curative role in order for it to be “reasonable and necessary”. It only has to assist with respect to pain relief or improve function. Again, as with trial preparation, and depending upon the size of your office (and complexity of the file), preparing for a single mediation can involve many different people from experienced lawyers to junior lawyers, articling students, law clerks and staff. It will become necessary for tasks to be assigned to the appropriate level of authority.
8. Up to Date Information from Client
Ensure that you meet with the client in advance of the mediation brief being prepared. I like to meet with the clients just before I start preparation of the brief but after I have reviewed the file to identify what updating needs I have from the client. At the same time, ask the client to bring in with him or her any photographs, plaques, awards, trophies or other demonstrative aids which might prove useful depending upon the type of case.
I like to ensure that transcripts of the examination for discovery are available prior to my completing the mediation memorandum. My staff have instructions to order transcripts contemporaneously with setting the matter down for trial. (Most mediations in my office take place after the matter has been set down for trial.)
10. Assessable Disbursements
It is important to have a list of assessable disbursements together with supporting invoices at every mediation. I routinely surprise my clerks by settling cases that were “unsettleable” and by failing mediations where we were certain it would settle. There is little worse than proceeding to a mediation and marshalling all of the energy required to come to the precipice of settlement only to reach a stumbling block because disbursements aren’t properly set out. In the event that you have any question as to whether a disbursement is assessable, ask the lawyer. This can be a gray area but it is better to include than exclude questionable disbursements. The lawyer will also wish to have a pre-bill or the time summary in the file so that he or she can identify for the client at the mediation the fee which is to be charged.
11. Consider Whether or Not Witnesses Should be Interviewed
The form of interview may depend upon the form of presentation. If a PowerPoint is to be considered, it is very useful to video interview three or four witnesses. We will typically interview a handful of lay witnesses who can provide short succinct important pieces of testimony in critical areas. For example, in a mild traumatic brain injury, we will try to interview a prior employer who can testify as to the plaintiff’s terrific pre-morbid disposition and in the best of all possible worlds can provide evidence with respect to their post-accident difficulties. The same can be said for co-workers. I attempt to avoid family members because of obvious bias issues. In addition, if there is an expert who brings a unique area of expertise to the table, he or she might be interviewed as well.
Consider a “Day in the Life” video. These can be used in cases that involve serious but non-catastrophic injuries. If people have particular mobility problems or have had to make excessive accommodations to account for their disability in the home, it can be useful to have a short video prepared identifying how these people cope. In a recent case involving a woman with severe bilateral pilon fractures to the ankles, I prepared a video showing how long she has to rub her feet in the morning, how she has to lower herself from bed and then crawl on the ground on her buttocks to get to the washroom in order to mobilize herself. Although this woman was able to walk unaided thereafter, the picture and vision of her crawling on her butt to the bathroom was very effective. Clients also feel a sense of participation – almost emancipation at being asked to participate in a video. They feel better about the process because they have some ownership in it.
Video interviews are very time consuming. A good starting point is to ask the client for people that he or she would suggest we might contact. We then will have the clerk or a student contact these people to get a verbal statement from them. After discussion with the lawyer, the handful of people will have been identified that you may wish to video interview. We do these in-house and it is very inexpensive.
If it has been decided that a PowerPoint presentation will not be done at mediation, consider securing written, signed statements of these witnesses.
12. Preparation of the Physical Premises
In the event PowerPoint is being considered, you will want to ensure that there is appropriate lighting dimming capability and a screen present. Ensure that the premises are sufficiently large to accommodate equipment, illustrations, demonstrative aids and the number of people that will be attending. Please ensure that the equipment is tested and is packed up for the lawyer prior to his or her departure. You may wish to suggest to the lawyer that he or she consider having the mediation away from downtown Toronto. We are increasingly asking counsel to come to Barrie for mediations for our Barrie clients, especially where mobility is an issue. Defence counsel and mediators are usually happy to respond to this request – especially on the Friday of a long weekend.
13. Mediation Memorandum
Each lawyer has his or her own format for the memorandum. I prefer to include copies of all of the medical reports and documents that are referred to in my memorandum. For that reason, my mediation brief is often two inches thick. I always have enough memoranda sent to defence counsel so that each counsel and each claims examiner has their own copy. I also ensure that my client has received a copy of both my memorandum and the defence memorandum. All too often, plaintiffs are only willing to see the upside to their case and I find that it is useful for them to “see the other side” as espoused by defence counsel.
14. Consider Responding Memorandum
In an unusual scenario, I will do a brief memorandum which responds to a memorandum of defence counsel. I do this where there has been some form of egregious error made by the defence lawyer. I do not wish to make defence counsel look bad in front of his or her client so I will often correct any mistakes which are made in the defence memorandum in my opening presentation at the mediation.
Even if no settlement is reached at the mediation, the mediation memorandum will prove to be a resource for pre-trial and trial and thus will not be a wasted effort.
15. Meeting the Client – Again!
It is helpful to meet the client the day before the mediation if at all possible. By that time, you will have had all of the up to date material for your own mediation. In addition you will have received and read the defendant’s memorandum. You can then review the salient points in the defendant’s memorandum with the client. It also will provide an opportunity to discuss settlement figures. It is helpful in my experience to have some parameters of what the client might take by way of settlement and what you would recommend by way of settlement on the eve of mediation.
16. Going to Mediation
Seeing is believing. In an ideal world, I would take a law clerk with me on every mediation. It is a useful exercise to take a law clerk on a mediation. It will provide you with a context for your efforts. Do not hesitate in asking the lawyer if you can attend. Your presence will also be of benefit to the client. You will make him or her more comfortable and will be able to spend the time with the client at the mediation that the lawyer cannot.
It may be too simplistic and naïve to say preparing for mediation is like preparing for a trial – however it certainly is a useful analogy. A lawyer and a lawyer’s team who is well prepared when going to battle in mediation will certainly have the upper hand in the complex set of negotiations that are to follow. Law clerks play a very important role in the process. Their usefulness is limited only by your imagination.
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