HOW TO WRITE A MEDIATION SETLEMENT LETTER

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“The supreme art of war is to subdue the enemy without fighting.” Sun Tzu, The Art of War

For some time, most settlements have taken place through a mediation process rather than direct negotiation with the insurance company. However, settlement negotiations usually involve a letter sent to the insurance company, defense counsel or to a mediator. These settlement letters are the basis for outlining the case and the plaintiff’s position regarding settlement. While there are a variety of ways these letters can be drafted the most common is a letter outlining the facts regarding liability and damages with supporting documentation.

The letter also serves an important function of advising the mediator and defendants of any conditions of a potential settlement or policies regarding settlement agreements. This avoids misunderstandings about these issues at the mediation. It also avoids the common negotiation tactic of waiting until an agreement has been reached and then adding additional terms of settlement.

Our office policies included a fixed time schedule for mediation to avoid the common experience of discussions dragging out without any fixed time allotted. We found a fixed time period greatly approved the chance of settlement and helped us determine early in the process if there was a reasonable chance of settlement or continuing was a waste of time. We also had a set policy of refusing to agree to confidentiality restrictions as a condition of settlement. We came to the mediation with a memorandum form with blanks outlining the settlement terms for any settlement reached. We required it be completed and signed by all parties before leaving the mediation to avoid later attempts to revise the agreement. Of course, these policies and the settlement proposals involved client advance approval.

The following is one example of how to write a letter to a mediator in preparation for a scheduled or proposed mediation in a medical malpractice case. It is from a case our law firm handled but has been revised for simplicity and by changing names for case identifty confidentiality.

NATURE OF CASE

It is important to give a short summary of the basic nature of the case in the introductory paragraph. Much like the title to a newspaper report, this section gives an outline of what the case involves. For example:

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This is a medical malpractice case against a hospital and two physicians due to negligence involving the care of the mother during labor and delivery resulting in injuries to the infant.

The delivery occurred at Seattle Hospital on November 4, 2016. The suit seeks damages for the injuries suffered by the child and for the consortium loss by the parents, John and Helen Smith. The negligence consisted primarily in failing to deliver the child when babies condition required delivery as well as negligence in the delivery process which a failure to promptly resuscitate the baby aggravated the amount of injury suffered by the child.

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THE PARTIES

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In this section the parties are identified.

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The plaintiffs are the infant child Janet Smith and her parents John and Helen Smith. The defendants are Seattle Hospital, Dr. Joyce Williams and Dr. Michael Townsend.

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PLAINTIFFS ATTORNEYS

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This section identifies the plaintiff attorneys.

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The plaintiffs are represented by George Jones and Harry Smith of Seattle. .

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DEFENDANT ATTORNEYS

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This section identifies the defendant attorneys.

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The defendant Seattle Hospital is represented by William Brown of Seattle. Defendant Dr. Joyce Williams is represented by James Moore and Dr. Michael Townsend is represented by Helen King all of Seattle.

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LIABILITY

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A summary of the liability facts is an important part of the mediation letter. It should not be in extensive detail but rather a outline in order to provide a basic understanding of the case and the issues. It is important to supplement this section with relevant documentation obtained through discovery. It is not unusual to include photographs or other materials as visual exhibits in support of the description.

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Defendant physicians Williams & Townsend, were negligent in failing to deliver the baby when it was imperative to do so and, instead allowing the mother to continue to labor. The failure to deliver the baby caused brain damage to the child which was aggravated by a failure to promptly and correctly resuscitate the child after delivery. The hospital was negligent for its failure to have a qualified person for resuscitation of the infant and the required equipment plus mediations to do so

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The negligence involved allowing the mother to labor for eight hours in the second stage of labor when a much earlier was required due to the condition of the child as revealed by the fetal market monitor strips. The delay resulted in mental and physical disabilities to the infant.

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The mother’s primary physician was Dr. Joyce Williams OB. She was not at the hospital during the eight-hour second stage of labor because she had gone home leaving Dr. Townsend in charge.

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After six hours of labor Dr. Townsend became concerned about the condition of the child to call Dr. Williams and ask her to come to the hospital to examine the mother and infant. However Dr. Williams did not come to the hospital and had to be called a second time. She arrived two hours after she had first been called. While waiting, Dr. Townsend decided to manually turn the child which did on three occasions. However, third occasion, cord and tangled around the baby’s neck compressing oxygen. Dr. Thompson should have remained to monitor the baby after making the turn but instead left and did not discover the problem until Dr. Williams arrived.

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When the baby was delivered it was in a compromised condition, however the hospital did not have available in the delivery room the appropriate resuscitation medications and equipment. A further delay occurred while those were obtained.

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The baby was born with mild brain injury and physical disability due to the defendant’s negligence

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NON-ECONOMIC DAMAGES

In this section an outline of the injuries and the impact they have had and will add them to the future should be reported. The information should be supplemented by documentation such as the reports of experts and excerpts of deposition testimony regarding the effect on both the infant and the parents relationship to the infant.

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The child has mild but significant motor and brain deficits as well as physical disabilities. The parents have devoted their time to the care of the infant. There have been numerous visits to doctors and therapists. The child will continue to need vocational therapy as well as physical therapy.

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ECONOMIC DAMAGES

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In this section the out-of-pocket expenses incurred as well as the projected expenses into the future should be outlined. Again, documentation of these expenses ought to be provided with the letter.

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The past medical expenses exceed $100,000 We are providing the reports of vocational expert and economist regarding the future economic loss. The projected life expectancy of the child is to age seventy. The total economic loss past and future is projected at $250,000.

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EVALUATION

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A discussion of the liability and damages evaluation should be included. In most cases, it is wise to provide a figure being asked as an appropriate settlement about the case.

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We believe the liability facts of this case are compelling and make the case a very strong medical malpractice claim. The defendants excuse for their conduct that babies problems preexisted the labor and delivery are without any substantial evidentiary support. We believe the jury will have a strong reaction to the lack of care on the part of the doctors and the failure of the hospital to provide required care plus resuscitation medication and equipment. A reasonable and fair jury verdict in this case is $5 million dollars.

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OUR SETTLEMENT POLICIES

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It is very important that the letter outlines any set policies that the clients and law firm have regarding settlement. If they are not made clear before the mediation starts there is a risk that settlement can be prevented by other issues even after agreed amount can be reached. Obviously, all of the conditions outlined in the letter must be those approved by the client in advance. Here are examples of policies in that regard.

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We would like to avoid any misunderstanding about our client’s and our settlement policies regarding mediation:

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1.We will not agree to any form of secrecy or confidentiality about any aspect of the facts or settlement reached requirement as a condition of settlement.

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2.We will require a memorandum of the terms of settlement signed by all counsel before leaving the medication.

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3.We will require an agreed time schedule for the mediation process and will only participate in the mediation in conformity to the allotted time.

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Conclusion

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Mediation or settlement letters are important part of reaching a settlement in personal injury cases. They ordinarily do not have to be overly long or complicated. The important thing is to outline the basics of the case and the issues involved for the benefit of the mediator or the defendant that attorneys or insurance companies you’re dealing with.

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A letter is not the exclusive way of providing information of this kind. Settlement outlines have been submitted by digital means including DVD presentations and with exhibits such as photographs, diagrams and even video presentations.

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The letter in this case is intended only as an example of the format which needs to be supplemented and revised that your case.

About Paul Luvera

Plaintiff trial lawyer for 50 years. Past President of the Inner Circle of Advocates & Washington State Trial Lawyers Association. Member American Board of Trial Advocates, American College of Trial Lawyers, International Academy, International Society of Barristers, the American Trial Lawyers Hall of Fame & speaker at Spence Trial College
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