Help Me Help You: Mediators’ Must Haves for Successful ADR

By: Heather L. Nelson, The Everson Law Firm, and Kristen S. Scheuerman, Weiss Law Office, S.C. 

We have all been to conferences where we are told how to prepare for a successful mediation: work up your case ahead of time, be prepared, and submit your materials in a timely fashion. We do not disagree with any of that advice but shouldn’t we all know that by now? Having mediated several hundred cases collectively, both while representing litigants and acting as mediators, we think the most important secrets to successful mediations are in the fine details.

I.              Create a Mediation Submission Template

This might sound simple, but creating an organized template that covers all the relevant topics and issues will not only force you to really think about the aspects of your case, but it will help your mediator get much better acclimated with the case too.

Example:         A. CASE INFO AND PARTIES

B. QUICK SUMMARY

C. ACCIDENT AND LIABILITY

D. SPECIAL DAMAGES

E. CLAIMED INJURIES AND MEDICAL TREATMENT

F. PERMANENCY AND IMPACTS ON PLAINTIFF

G. EXPERT REPORTS

H. DEPOSITIONS 

Appellate judges often remind us that although we may live and breathe our case and know it inside and out, when they first see a brief, they have absolutely no idea who any of the parties are, what the issues are, or what the important facts are, and why those facts matter to the case at hand. Do not assume that a mediator has any clue what your case is about. At the same time, get to the point and share just the necessary facts and details. Unless the time of an accident is of critical import, you do not need to go into the weeds describing the day of the week or the hour and minute of the impact.

This is a general outline that gets to the relevant information in an easy-to-consume manner for a mediator.

MEDIATOR’S PREFERENCE POINT: If you are savvy enough to include hyperlinks to additional information, please do so. It is much more efficient to review one single document than to have to read a submission and click and open twelve different attachments. To that end, also think about what a mediator really needs to review. Does the mediator actually need the crash report, or can you succinctly summarize the nature of the accident within your submission? (Hint: most often it is the latter.)

II.            Just the Facts, Ma’am

We might be stealing Joe Friday’s thunder on this one, but often, less really is more. No mediator wants to review thousands of pages of medical records to try and figure out what are the plaintiff’s claimed injuries. Similarly, billing records are honestly useless unless you provide a summary; and if you provide the summary, the billing records are just not necessary. Parties often provide much more than they need to, but we also find that parties neglect to include the stuff we really need most to be as effective in the other room when talking to the plaintiff and their counsel. 

To highlight what we think is the most impactful information to include in your mediation submission, we will work off the template outline provided with some suggestions on what to highlight within each section to help your mediator be as prepared as she or he can be for your mediation session.

CASE INFO AND PARTIES: This should be a high level, down and dirty summary of the case and players; where is the case venued, what are the names of the parties and who represents each party. It is (as odd as this sounds) also helpful to include the date and time of the scheduled mediation to make sure everyone is planning to be at the same place on the same date and time.

Please do not forget about subros! If there are subrogated parties, although plaintiff’s counsel should be identifying those folks, it is not going to hurt to hear about them from defense counsel too so the mediator can be prepared at mediation to include all the relevant players. 

QUICK SUMMARY: Keeping in mind that the mediator knows nothing about your case, this is an excellent opportunity to provide a nutshell style summary for the mediator. This should include what the case is about, what’s at issue, what’s contested, and the procedural posture of the case.

Example:         This is a low speed, minor damage chain-reaction rear-end case. Although we will likely stipulate to liability, plaintiff’s claimed injuries are being contested, both in light of the nominal amount of property damage and due to a significant prior history of similar complaints. 

At this time, both plaintiff and defendant have been deposed. Both parties have named experts; please note that on behalf of my client, we have named a biomechanical expert who will testify about the forces of this impact and the lack of velocity present in this accident to produce the injuries claimed. Plaintiff has no similar expert. Plaintiff claims permanent injury and a lifetime of chiropractic care, despite being 55 years old with a 40+ year history of chiropractic care for neck pain.

If we are unsuccessful at mediation, this case is set for trial in front of Judge Johnson in Dane County from June 1-5, with a pretrial set for April 20. 

ACCIDENT AND LIABILITY: If liability is contested, it is helpful to know what specific facts are the basis for your defense. It is also helpful to include jury instructions that support your position or defense; not all plaintiffs are represented by counsel who really prepare them for the reality that just because bad things happen does not necessarily mean someone is legally liable for the same. When you include specific jury instructions (preferably cut and pasted right into your submission) it allows us as mediators to educate the plaintiff on what a jury will be told and how that legal instruction may then cause a jury to apportion fault (and of course what impact that has on damages). 

SPECIAL DAMAGES: If possible, just include dollar amounts by category of damages.

Example:         Past specials $50,000

                        Mileage: $1,000

                        Wage loss: $5,000

                        Future specials: $250,000

It is incredibly helpful to also know within this section what is being claimed in terms of any amount plaintiff may pursue for future damages (injections? chiropractic care? medication?). When it comes to futures, we also know that more often than we would like to see, defense counsel is first learning about claims for large amounts of future medical care at the time of mediation. Although this might require an extra email, we would strongly encourage you to reach out to your mediator early on, long before submissions are due, if you have any suspicion that a plaintiff is going to include last-minute big-dollar futures at the time of the mediation. Why? A good mediator can solicit this information from plaintiff’s counsel and pass the same along to you well in advance of actual mediation so that at least you can educate your claims professional or client as to what plaintiff’s position is going to be. 

Having a straightforward section in your mediation submission dedicated to just the “blackboarded specials” is incredibly helpful in allowing a mediator to start to put pen-to-paper and understand the scope of the claims made. 

One of *the most* helpful things you can include in your submission if you are contesting some of the claimed injuries, and to that end, some of the claimed specials, is to break that down for the mediator in terms of dollars and cents. If your IME cuts off treatment after twelve weeks, what does that mean you will tell a jury in terms of the reasonable specials? You may be in a position where you have little defense to one injury claimed (for sake of example, let’s say a broken leg) but you contest the majority of treatment related to a whiplash injury: provide the mediator your position by the numbers.

Example:         The bills related to the broken leg are $35,000 but our IME will support just $2,500 of the bills related to chiropractic care claimed for treatment of the whiplash injury.

Providing concrete numbers related to your position gives a good mediator a much more tangible set of talking points to use when helping a plaintiff understand why the defense is negotiating from a certain point; if the plaintiff is claiming $50,000 in specials, but you have an IME that says just $10,000 of those bills are reasonably related to injuries sustained in the accident, when you make an opening offer of $15,000, the mediator will be able to diffuse some of the anger we would expect to hear from a plaintiff who believes that all of the bills should be paid and the opening offer should be something more than $50,000.

CLAIMED INJURIES AND MEDICAL TREATMENT: It is also helpful to have a high-level summary of the claimed injuries and a clear delineation of the injuries you contest. 

Example:         Plaintiff claims the following injuries: broken left leg, bruised sternum, 3 broken ribs on the left, sprain/strain injury to her neck and upper back, and multiple abrasions to her left leg and face. 

For the purpose of mediation, we are not contesting the injuries to Plaintiff’s leg, sternum, or ribs; however, our IME does not believe the injuries claimed to the Plaintiff’s back or upper back are as significant as what Plaintiff claims.

From there, it is very helpful to have a summary by the numbers of the nature of Plaintiff’s treatment. In other words, how many office visits did Plaintiff attend? How many injections? How many surgeries? How many chiropractic adjustments? How many PT sessions? We have all done this for long enough to know that sometimes, just the nature of and frequency of treatment matters. Understanding the type of treatment the plaintiff had and the amount of treatment plaintiff had is often more helpful than reading fifty pages describing every appointment the plaintiff attended.

If there were significant gaps in care, it is also helpful to clearly identify those gaps. 

Finally, if you have a case where plaintiff had significant priors, please help your mediator understand that history. Ideally, this is not done by providing a medical summary and asking the mediator to review the entire thing (medical summaries do serve a purpose, but they also have a lot of unnecessary information to sift through). If the plaintiff is claiming a back injury, and the plaintiff has treated for this in the past, here is what is most helpful: 

Example:         This accident occurred on May 1, 2020. In the five years before the accident, Plaintiff had at least 75 appointments with various doctors to specifically address complaints with her back. Most notably is the following: 

4/30/2020 (day before accident): Treated with Dr. Feelgood and reported “10/10 back pain that has been debilitating for at least 6 months.” 

April 2020 (month before the accident): 2 injections to her back, 12 chiropractor adjustments to her back, filled a prescription for Oxycodone prescribed by PCP specifically for back pain 

Jan-March 2020: 10 PT sessions specific to back pain, 1 ER visit related to “excruciating back pain,” and 30 chiropractic adjustments specific to plaintiff’s back. 

Having a chronological summary with quotes or excerpts from records is an incredibly helpful tool for a mediator who has to help a plaintiff understand what his or her injuries look like on paper prior to an accident and why that may cause a jury some consternation. A word of caution: do not set your mediator up to fail. If the plaintiff is claiming an injury to her upper back, and you lead a mediator to believe there are a bunch of priors when in fact the prior records specify an SI joint or the lumbar spine, avoid the temptation to blur these lines. A mediator will lose credibility with a plaintiff and his or her counsel if the mediator is given bad information. You may also lose credibility with your mediator. It’s a long game and career and your credibility is gold. 

PERMANENCY AND IMPACTS ON PLAINTIFF: Summarize the injuries the plaintiff claims are permanent, and in what way they are permanent. If there is treatment the plaintiff claims is necessary because of these allegedly permanent injuries, it is okay to repeat that for the mediator in this section.

If you do not agree the plaintiff suffered a permanent injury, this is a great place to tell the mediator why that is and share any evidence you plan to use to support your position. Sometimes your permanency-attacking evidence is just the plaintiff’s prior records; sometimes that is an IME report; and sometimes that may include confidential surveillance footage. Make it abundantly clear if you share with a mediator that you have surveillance video (or any other evidence of which you believe plaintiff’s counsel may not be aware) that you do not want that fact shared with the plaintiff. It may be helpful to have the video available at mediation to share with the mediator so that he or she can understand how plaintiff’s credibility may be impacted at trial. Set very clear and explicit boundaries for your mediator as to what you would like the mediator to do with this information, if anything. There can be a fine line of laying your cards on the table to effectuate a settlement or deciding to hold cards for trial, this strategy should be discussed with your client prior to and during mediation.

It is also helpful to have a bullet point list, from the defense perspective, of how Plaintiff claims any permanent injuries continue to impact his or her life. If there were significant impacts on plaintiff’s life in the past as a result of the injuries claimed, it is also helpful to have a succinct summary of those allegations.

EXPERT REPORTS: It is helpful to know if reports exist and if so, who wrote them, and who is that person. For example, Plaintiff’s treating chiropractor is Dr. Crunch and Dr. Crunch has written a report supporting Plaintiff’s claim that she needs chiropractic care every week for the rest of her life. You can find that report here (ideally link to the report). 

If an IME report is fifty pages long, consider including just the conclusions that support your position. Again, it is tempting to just ask a mediator to read an entire report, and not summarize any prior treatment yourself, but the reports provided by experts usually dive much deeper into the weeds than what a mediator needs to really do his or her job most effectively. 

DEPOSITIONS: Summarize who has been deposed and cut-and-paste the most critical portions of those deponents’ testimony. Ideally, do not send full transcripts of everyone who has been deposed and just ask the mediator to read every transcript. While we do not always read every page of every deposition presented—in the interest of time efficiency and cost-effectiveness—other mediators may settle in and read it all. Even for those of us who will word-search or flip and skim for relevant and helpful information, providing just transcripts with no overview or highlights of that deponent’s relevant testimony is sigh-inducing.

III.          Send Important Documents Ahead of Time

If your client requires a particular Release and/or Medicare documentation or Addendum, consider sending that plaintiff’s counsel and the mediator ahead of time. A good mediator can address concerns about any required release language while all the parties are captive to ensure that if a deal is struck, there are no waves to navigate after the mediation session has concluded. 

If the plaintiff is a Medicare recipient, communicate with plaintiff’s counsel at least sixty days in advance of mediation to ensure that plaintiff’s counsel is prepared to have his or her ducks in a row (including a current Conditional Payment Letter from both Medicare and Part C plans, if unrepresented by counsel) that anything your client requires to issue a settlement check is addressed before and during mediation. Any terms or requirements specific to Medicare should be incorporated into the mediation agreement as well.

IV.          Show Me The Money

Rod Tidwell said it best. Make sure you have access at the time of mediation to whomever has the authority to actually make decisions about settlement authority. It is also helpful to understand what your client’s internal process is for securing additional authority if that becomes critical during mediation.

V.            Conclusion

Whether a case settles or not is usually not in our control. However, what we can control can make a difference, both to the mediator and to our client. Presenting the mediator with clear understandable information and documentation can help them do their thing in the other room. If the case doesn’t settle, your preparation will have instilled confidence in your client that you have a firm grasp of the case and are ready to defend it at trial if settlement isn’t in the cards. Solid, thoughtful mediation preparation is a win-win regardless of the outcome. 

Author Biographies:

Heather Nelson is current Past President and Shareholder of Everson, Whitney, Everson & Brehm, S.C., in Green Bay. She currently serves as WDC President, having served on the Board of Directors and Executive Committee as well. Heather is an experienced trial attorney, having successfully tried cases before juries in state and federal courts throughout Wisconsin and Illinois. She obtained her J.D. from DePaul University College of Law in Chicago and launched her legal career in the Chicago area. Heather became licensed to practice law in Wisconsin in 2000, defending cases in both Illinois and Wisconsin. Joining The Everson Law Firm in 2016 brought Heather back home to her Green Bay roots. Her practice areas include motor vehicle accident, premises liability, wrongful death, and insurance coverage. Heather has been active in presenting CLE topics at WDC conferences, for the State Bar of Wisconsin, and at the North Central Region Trial Academy.

Kristen S. Scheuerman joined Weiss Law Office, S.C., in October 2022 after spending more than a decade at a large Fox Valley law firm, where she practiced as a Shareholder. Kristen’s practice has always been focused on personal injury and civil litigation, and before joining Weiss Law Office, she also served as a municipal prosecutor. Throughout her career, Kristen’s practice has also included appellate work in a variety of practice areas. Kristen earned her bachelor’s degree from Lawrence University and her law degree from Marquette University Law School. She is admitted to practice in all Wisconsin state courts and both district courts.