In personal injury cases, mediation may take place before discovery is complete. That’s not unusual. The parties may still need to supplement. However, mediation can still be productive and successful, even when discovery is outstanding, if both sides are approaching the case based on a shared understanding of the key information.
Both sides must appreciate the need for the sharing of key information prior to mediation if the goal is to have a successful mediation.
The mediation may stall if a plaintiff takes a position, particularly involving a substantial damages claim for lost wages or future medical expenses, without providing the supporting information to the defense in advance. If the position at mediation is based, in part, on specific documentation or projections such as wage records or a life care plan, that information needs to be exchanged well before the mediation date so that the defense has a meaningful opportunity to review and evaluate it. The plaintiff may be relying on detailed assumptions, but if the defense hasn’t seen the material, or doesn’t know it exists, then the process becomes frustrated. In effect, the parties are attempting to resolve two different versions of the case, and meaningful negotiation becomes difficult.
The same concern applies to the defense. Has there been a medical record review or expert analysis? Does that impact the evaluation? Has surveillance been conducted? If the defense is relying on this type of information, and it has not been disclosed to the plaintiff in advance, the process can become equally frustrated. Just as the defense needs a fair opportunity to assess the basis of the plaintiff’s demand, the plaintiff should also be able to understand what is driving the defense’s response. Mediation is most productive when both parties are negotiating from a common frame of reference.
This blog is not intended to suggest how discovery should be conducted or to suggest when mediation should be scheduled. Strategy is an enormous part of the process. The decisions will vary from case to case. Rather, this is a practical observation from the perspective of a mediator with quite a bit of experience. When both parties have access to the same underlying information, the likelihood of meaningful negotiation, and potential resolution, increases significantly.
Tommy Santel is a co-founding partner of Santel | Garner. Tommy is a former government prosecutor. He is a Tennessee Supreme Court Rule 31 General Civil Mediator and his practice areas include criminal defense and civil litigation.
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