Proven, Professional Assistance in Mediation Matters

Negotiation News: Volume 4, Issue 5

Speak Their Language!

In personal injury cases, parties may come into mediation not knowing what the other side needs to do to settle a case. By way of example, plaintiff may simply say “pay what you owe” (or to quote Jerry Maguire, “show me the money!”). Conversely, a defendant may say “take what we think your case is worth and go away”. While either of those positions may sometimes result in a settlement, more often than not, there is a disconnect between what the Plaintiff must understand about the Defendant and visa versa. Thinking about each side’s necessities and issues should make disputes easier to resolve.

Plaintiff’s counsel should consider, if the defendant has an insurer participating in the mediation, how the file is evaluated.

Though this list is brief, here are some things to discuss and/or consider:

    1. Who is the claims representative assigned to the case, and what authority may they have? Who is personally attending the mediation and/or will there be someone available by phone?
    2. Is defense counsel “calling the shots”, and/or does he or she have significant input into how the case is evaluated?
    3. Has the initial evaluation changed substantially after the deposition is taken, and the treatment or injuries are more fully evaluated?
    4. Are there are coverage issues such as a Crawford issue, appointment of Cumis counsel, excess exposure, etc.? (NOTE: for a more thorough discussion of Crawford issues, visit Article 1-4 on my website at Negotiation News: Volume 1, Issue 4.)
    5. What information does the claims representative need to justify payment and close the file?

From a Defendant’s point of view, here are some issues that are on Plaintiff counsel’s mind when mediating:

    1. What expenses are on a lien?
    2. What treatment has been paid by insurance?
    3. What treatment is subject to Medicare?
    4. How does plaintiff evaluate non-economic damages and why?
    5. How is plaintiff’s counsel going to make what is being offered “work” (i.e., take care of my client, take care of the liens and take care of myself)?

Keeping these and other issues in mind will help in pre-mediation communications with each other. Consideration of these issues is particularly important when exchanging mediation briefs and exhibits, and especially as a case gets closer to resolving.

  • Charity

As always, when booking your mediation, please direct me to the website of your charity and I will donate part of the fees in your name.

I look forward to working with you in mediation soon.

Take care,


Sean E. Judge is a mediator with offices in Woodland Hills, CA. In his 21 years as a litigator, he has represented corporate and institutional clients, and individual litigants and small businesses, both as Plaintiffs and Defendants. He can be reached via telephone at 818-616-8500, at or via email at .