The following are forms I used in connection with settlement mediation of my cases. The first is an outline of my policies about mediation and my view as to the role of the mediator. Not everyone agrees with my viewpoint, but this was the way I approached mediation and my conditions for mediation. I am also providing a form letter to the client explaining mediation generally. In addition, the home provides a form letter to the defense stating our office policy as a condition for conducting the mediation. Lastly, I have included a form representing a memorandum of agreement regarding settlement. I hope these will allow you to create your own forms for mediation.

TO:     Attorneys FROM: Paul Luvera RE:    Mediation

1. The mediator. Let’s remember the mediator is not our friend. The mediator has one objective: to settle the case. Consequently, this is not someone we want to share our true “bottom line” with, nor someone whose representations we should totally believe. We need to regard the mediator as part of the negotiation process and not our ally. This is someone with a personal agenda to settle the case. Our agenda is to find out the chance of settlement, the defense position, and, if possible, to obtain our full appraised value of the case, having the client’s best interests in mind at all times.  

• Finding a mediator. It is very difficult to find a mediator who will fulfill the role we think they should have in our mediation. We want mediators with the skills to determine as soon as possible the likelihood the case will settle if we continue the mediation, who do not waste time with irrelevant activities, and understand our idea of their role as mediators. A person who does not think they are a judge in control, or thinks they are qualified to judge our liability or the value of the case. Most have no concept of the true value of our cases, often have little actual trial skills, and are usually conservative in their personal evaluation of cases. Many try to evaluate cases by comparing our case to other similar cases, which is a totally worthless comparison because each case and each case’s lawyer, clients, and case issues are unique. The best idea is to ask other qualified plaintiff lawyers with our approach to mediation for mediator suggestions

• Role of the mediator. With lawyers as experienced as we are, the mediator’s primary role is simply to be a communicator between the parties and share insights into relevant case issues. It includes the ability to determine as soon as reasonably possible if the mediation is a waste of time or not, and to learn the key case issues the parties are focused upon. Their role is to limit discussion on the main issues or points impacting settlement. Don’t waste time talking about the mediator’s opinion regarding the liability chances or the value of the case. That’s like asking a law school professor to tell you how to try cases. They haven’t lived with your case and know far less than you do about it, as well as your abilities. Don’t let the mediator (or the defense) try to tell you what the case is worth on the basis of averages of other settlements or other verdicts. Those involve an average, like an insurance mortality table involves the old, the young, the sick, and the healthy. That kind of thinking is a “labor and industry” compensation approach to valuing cases. Besides, you weren’t the trial lawyer in those cases. Remember, the mediator may have been a judge once, but we aren’t in their courtroom now, and they can’t find us in contempt, so don’t be intimidated by a role the mediator tries to impose. Don’t waste your time arguing with the mediator about their view as to liability or settlement value. Make your position clear and ask that it be communicated to the other side.

• Preliminary matters. We should always be conservative in the settlement range we suggest to our clients and always get a written, reasonable settlement authority. In that way, clients will be appreciative of a higher settlement we obtain over what they authorized or expected in these cases. Send clients our mediation advice letter before the mediation takes place. Send the mediator and adverse attorney or mediation policy letter before the mediation takes place. At mediation, when our position is strong, we should insist on an opening offer before we even agree to attend mediation. In other cases, we should consider initially not making an opening demand at mediation and instead, insist on the defense making the opening offer to show their good faith before we waste our time.

• Mediation Policies We send our mediation policies to the mediator and all parties as a condition for mediation, before the mediation takes place, including our policy to refuse confidentiality demands. We enforce these policies. That includes our timetable for mediation to start and end. If the mediation is not concluded by the deadline we have set, we leave the mediation.

• Mediation procedure generally, if the mediator wants to meet with both sides before we separate or start mediation, do not let the defense representatives make a speech to our client about the benefits of annuity settlement or similar “advice” matters. We do not let the mediator talk to our client alone at any time without our being present. We do not let the mediator ask questions of the client about the client’s settlement position, nor any other client inquiry of the client about any similar matter. We are the client’s lawyer, and no one else has the authority to talk to the client without our approval. In general, our clients say very little in the presence of the mediator. Before responding to offers communicated by the mediator, we ask the mediator to leave so we can talk to our clients without their being present. We do not let the mediator or the defense talk to only one attorney if there are two or more from our office attending as a means of dividing our position.

• Meeting the other side Our policy is to insist on meeting everyone who is there from the defense before we even start the mediation. We do not negotiate with unseen people. We want to know who is there, their role and their involvement. We want to make sure someone with authority is present. We don’t have to make a preliminary statement about the case if the other side doesn’t want one, but we do want to see them face-to-face.

• Negotiation generally, we insist on negotiating money first before we talk about any other issues. Unless we can agree on money, there is no point in talking about the other issues. We do not engage in “stair step” dollar negotiation of large differences in amounts with small increments exchanged. If negotiation involves small amount increases (except at the very end of negotiation), we stop the mediation and advise that we are leaving as a waste of time. If the opening offer is not sufficient to show a reasonable chance of settlement, we don’t proceed with the mediation.

• Settlement Memorandum. Have a copy of our settlement agreement form with you. If you reach an agreement to settle, fill in the blanks and make it clear there is no final agreement unless and until our settlement form is signed by the insurance representatives and the defense attorney and our clients. Provide copies of the signed documents to the mediator and defense before you leave

FORM LETTER TO CLIENTS ABOUT MEDIATION

Re: Mediation

Dear….

We have agreed with the representatives of the defendants to attempt to settle your case through a process called “mediation.” This involves agreeing to an impartial third person who will assist the parties in attempting to reach a settlement of your case. We will be in contact with you to discuss the process and advise as to the location. It is set for hearing on______________at___________.

There are many advantages to this procedure, but in your case, the primary one is the increased chance of settlement for the maximum amount possible by using an impartial third person as the mediator. Mediation allows both sides to give their position confidentially to the mediator to help them understand how best to settle the case. It allows the defense to “save face” in agreeing to a settlement they might not otherwise agree to by relying upon the mediator’s recommendation. More than one mediation may be required to settle the case. There is nothing to be lost by this process except time. If we can’t agree on anything that is said or provided can be used against us at trial. Everything is confidential. In general, we have had very good success in mediating cases like yours and feel it should be attempted here.

Both sides will submit in advance to the mediator information about our case and our position. The mediator will review this in advance of the meeting. You need not bring anything with you when dealing with your case unless you feel there is something important we have not provided the mediator.

There are several things you should know:

1.         Be sure to bring reading material with you. The process involves a group meeting first and then separating the attorneys and clients for parties in different rooms. You and I will be in one room, and the defendants and their attorneys, plus insurance representatives, in another. The mediator goes back and forth in communicating during negotiations. There are often long delays while the mediator is talking to the other side. The process can take a full day, so be prepared to stay.

2.         No settlement will be made without your approval. You are present for all stages of discussion involving our case and the mediator. The mediator can only communicate offers and make recommendations. They cannot force you to settle your case. We will have plenty of opportunities to discuss offers and what is happening during this procedure. You have the final say on the settlement. Your attorney will be there to assist you, but the final decision is yours.

3.         This is not a trial. All the information is provided in advance, and the balance is given at the time of the meetings. There is a brief initial meeting at which all sides can make general statements about the case, but no argument and no witnesses are called. You will not be questioned as a witness, although the mediator may ask you some general questions about facts not provided in the written materials.

You should dress as if you were going to a trial, as the impression you make can have a bearing, particularly if the insurance representative will be seeing you for the first time.

We are providing information about where this will take place and when to meet the attorney. If you have questions would you, please advise me.

Sincerely yours

PAUL LUVERA

DEFENSE SETTLEMENT & MEDIATION POLICY LETTER

Re: (name of case mediation)

Dear (name)

We want to make our position clear regarding the mediation that has been scheduled in this case. The following outlines our firm’s policy regarding mediation and potential settlement of cases at correct this case:

1. Timing of Mediation

We are willing to participate in mediation, which would begin at 9:00 am and continue until 4:00 pm so as long as reasonable progress is being made towards a likely settlement. We reserve the right to end our participation at any time, if it appears to us that we are not making reasonable progress towards settlement. We will leave the mediation promptly at 4:00 pm whatever the status of the mediation.

• Mediation Agenda

We are unwilling to discuss any significant settlement issues before we discuss the settlement amount. If it appears that there is unlikely to be an agreement about the settlement amount range, there is no reason for discussing any other terms of settlement.

• Settlement Memorandum

The settlement is not final from our standpoint until our settlement memorandum has been signed by all the relevant parties participating in the mediation process.

• Confidentiality of Any Kind

We will not consent to any settlement which involves an imposed requirement on our clients, the lawyers or anyone else for secrecy or confidentiality of any nature about the settlement reached, the lawsuit or any other facts relating to this case.

These are policies and our conditions for mediation.

Sincerely yours

SETTLEMENT MEMORANDUM

          SETTLEMENT AGREEMENT SUMMARY

The parties agree to settle this case on the following terms.  Settlement documents in conformance with this agreement will be prepared and signed by the parties later.

1.         DEFINITIONS  

1.1       Plaintiff refers to the persons claiming damages in this case. Defendant refers to the persons or legal entities against whom the claims are made.

2.         AMOUNT TO BE PAID

2.1       Defendant shall pay Plaintiff, in full settlement of all claims, the sum of

$   ______________                                                                                                                             .

3.         MANNER OF PAYMENT

3.1       This is a lump sum settlement to be paid by money wire, check, or draft.

3.2       The money wire, check, or draft shall be made payable to Luvera Law Firm, in trust for $_______________. No other party or entity, including Medicare, shall be a named payee on the check.

3.3       The money wire, check, or draft shall be deposited in an interest-bearing trust account. No disbursement shall be made until the final release documents are signed and any required court approval has been obtained.

4.         TIME OF PAYMENT

4.1       The funds shall be made available for interest bearing deposit within ___________ days from the date of this agreement. It is understood that payment shall be made no later than the agreed date, irrespective of the execution of release documents or orders of dismissal. Interest at 10% per annum shall apply to any unpaid balance from the date due until the date paid.

4.2       Defendant agrees to deliver to Plaintiff’s attorneys all proposed release or other settlement materials within _________ days of the date of this agreement.

5.         TERMS OF SETTLEMENT

5.1       Neither the Plaintiff nor his/her attorneys agree to any secrecy or confidentiality restrictions regarding any aspect of this case or settlement. It is understood that nothing shall be considered secret or confidential regarding this case or settlement.

5.2       Plaintiff (or Guardian or Personal Representative) will sign standard release documents. No one will be released except the Defendant, who is a party to this agreement, and the Defendant’s named agents or employees.  The release documents shall only apply to the parties signing this agreement. Any other claims of Plaintiff are hereby reserved.

5.3       The language of the release documents shall conform to the terms of this settlement agreement. No provisions shall be added. This is a mutual release. 

5.4       Plaintiff (or Guardian or Personal Representative in his/her representative capacity only) will agree to hold Defendant, Defendant’s insurer, and Defendant’s attorneys harmless from payment of subrogation claims or liens in connection with this case

5.5       Plaintiff’s attorneys will not sign any form of hold harmless or release documents except for orders of dismissal.

5.6       When all provisions of this agreement have been complied with, Defendant(s) shall be dismissed with prejudice.

                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                        DATED THIS _____DAY OF _________________, 20        .

6.         ADDITIONAL TERMS OF SETTLEMENT_______________________________________________________________

Plaintiff Representatives                                             Defendant Representatives