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Mediation Tip: Start/Keep A Mediation Notebook

July 8, 2014

Every good trial lawyer has their Trial Notebook. It is as important to them as their spouse or children! It goes with them to every trial.  It is kept in a place of reverence. And, it contains all of those things that every good trial lawyer knows, in advance, they will need, quickly and  repeatedly, in every trial in which they are engaged.

But, every trial lawyer’s trial notebook is also a “living” thing. It grows with simply every new experience. Every new trial will cause a new entry in the notebook for the next trial! Every seminar will cause inclusion of at least one new idea.  Any shared insight or new case or proven tactic from a respected fellow trial lawyer will quickly be added.

Some will say their trial notebook is a “crutch”; most will say it is one key to their repeated trial success.  All will say it is an absolute necessity.

If you wish to call yourself a trial lawyer, you simply must have a trial notebook.

However, I suggest, if you wish to be a complete trial lawyer, you must also start, and keep, a Mediation Notebook!

Trials usually take days or weeks or longer.  Mediation commonly takes only hours!  Where you might have enough time to re-find that key case or tactic you desperately need sometime during the length of a trial, if you do not have with you what you need in mediation, you simply will never have the time to find it during that mediation!

Advance preparation is always the key.  See, Become One of the Top Ten Percent of all Mediating Attorneys, April 11, 2013.

Like a trial notebook, the organization and content of a Mediation Notebook will vary with each lawyer.  But, to get yours started, here are a few suggestions on how to begin your Notebook and what to include.

(I apologize, in advance, about the length of this posting, but there was no easy place to break it.)

I suggest you begin with a simple binder to permit easy addition of written items.  Then divide your binder/folder by a simple outline and index. (Note:  Although this posting will emphasize the claimant’s attorney’s likely inclusions, a similar one for defense attorneys is similarly easily constructed; just with a different emphasis.)

Your Pre-Mediation Section should probably begin with form copies of YOUR “standard” Mediation Notice and Certificate of Authority.

See, i.e.,  A Major Change in the Florida Rules of Procedure Regarding Mediation Procedure, November 22, 2011;  and, Send Your Own Notice of Mediation, April 4, 2014.   You will want to have these handy to remind yourself of their critical need.  (Trust me, you will NOT have that same great secretary/paralegal you now enjoy, for life!)

This pre-mediation grouping should also include your checklist of those tasks you should always accomplish PRIOR to mediation in each of the different types of mediation you may face.

These will vary depending upon your practice (and side!)

For example, in personal injury matters, three critical needs of any Plaintiff Attorney:  1) a current and/or updated list of the total “boardable” medical bills 2)  a separate current list of all liens of any kind that will have to be repaid from any settlement offer and (3) your final pre-mediation “demand/offer”/information update letter to your opposition.

However, in EVERY trial matter of any kind, this task list must also include a draft of your order of proof and  a draft of your likely trial verdict form!

If you are NOT at least “draft” ready for trial, you are likely too premature and thus too unprepared for mediation.

And, as each of these “draft” tasks is completed each will then fill the remainder of your notebook to take with you to mediation.

Accordingly, your Formal Mediation Section may be initially subdivided as: 1) Opening Statement  2) Law  3) Negotiation Plan 4) Financial Information and  5)  Settlement Agreement.

In your subsection for Opening Statement, likely you will want to include a “canned” opening outline.  One that could be used “in a pinch” if you were unable to put one together on short notice, for example.

However, more useful would be such an outline reminding you of the “elements” you wish to include on EVERY opening.  And, those you will want to remember NOT to use.  See, Mediation Opening Statement:  Try a Different Approach,  January 31, 2013

Other inclusions will be your checklist of important additional elements for use with your  opening, i.e., selected photographs or models.

You may wish to include a PowerPoint or a Timeline, or, a blow-up of an applicable Standard Jury Instruction (See Below).  Or, at least the checklist to consider each of them.

You will undoubtedly want to include, in any personal injury matter, the most recent full medical billing list and the all-important “surgical recommendation letter“.  See, The Surgical Recommendation Letter Issue, April 26, 212

Most important, however,  with each of the above matters you will be using your likely trial verdict form; the handy index to your entire mediation!  See, A Required Consideration…Your Likely Verdict Form, August 9, 2011.

Next, your Law section, should always include: a copy of the latest Standard Jury Instructions, if your case is one that is fortunate enough to have an applicable set.  Remember, that most judges will almost always give standard instructions over any special instruction.

If your case is one that is NOT covered by such a luxury, then make sure you have a draft of those instructions in your case WITH you. Having the applicable law at your fingertips is invaluable in mediation!

This is also a great place to have a copy of your case management order and, most important, your trial order.  (If you don’t know why, you REALLY need this notebook!)

Next, your Negotiation Plan subsection should speak for itself.

This section is where your pre-determined plan for just how you intend to get from your carefully considered case evaluation and thus, opening offer/demand, to your pre-determined final positions are kept.  See,  Create a Negotiation Plan, October 16, 2012

Another critical item to have with you are the full details of any applicable insurance coverage, including all insurer’s names, limits of coverages, and if possible, a clear understanding of the order of priority of each coverage.  See, Know the Details of All Insurance, November 19, 2012 and Know Your Pecking Order, June 21, 2011

And don’t forget to include copies of your history of any previous negotiation and copies of actual Proposals for Settlements, both those sent and those received.  Plowing old ground is a total waste of everyone’s time at mediation.

(It also probably wouldn’t be a bad idea to include a blog posting or two on basic negotiation for instant recall of strategy?  See, Bracket Offers, October 24, 2011; Incremental Offers, April 3, 2013)

And, if you have any special mediation issue, i.e. Global Mediation or Early Bad Faith, for sure do your homework.

Your Financial Information subsection is critical.

Every claimant attorney knows that their client will likely only be interested in the “net” of what is offered and the ability to translate each offer, if any, into net dollars is critical to success.  You will thus need these basics to be able to explain to your client his/her net from any offers made.

This will also be the basis of your mediators use of “Mediator Math”;  a most valuable tool in identifying the ultimate area in which negotiation must ultimately go for any chance of resolution, and thus for use working with both sides!

And, each Defense attorney will also want to have their information available for a quick comparison for their own clients to review in judging the reasonableness of your claim or potential claim!

Included in this section, including copies for your adversary, will be such important up-to-date data matters as your Lien Documentation and your detailed litigation cost ledger. 

For commercial cases (and increasingly all other matters) it is imperative to have available the details of the basics of any attorney fee claim you may seek.  i.e.,  your hours (preferably kept contemporaneously), orders awarding your past hourly rates and perhaps even a copy of your relevant fee contract..

The Settlement Agreement subsection, may be your most important section to start.   If you can only begin by “collecting” ONLY these tools, your reward will begin with your very next mediation!

More time is wasted in disputes over the proper mediation settlement agreement language than need be.  Having the proper tools, with you, to expedite the construction, and if necessary, the explanation for, each of the elements of your proposed mediation settlement agreement is critical.

Every settlement agreement in mediation begins with the proper general mediation settlement form.  In most it will be priceless to have your own generally proposed form prepared in advance.  It can be on paper, but better if on a flash drive available for instant mutual review and for agreed modification.  (And, incidentally, a great checklist for making sure all of your points are discussed DURING mediation!)

Many mediators, for “common” matters, i.e., personal injury claims, will have a “form” available for the parties to use in whole or in part.  (Note:  This form, however, is simply ONE possible proposal made as solely an accommodation to the parties.  You should use caution in using anyone’s forms unless you have carefully contemplated that the form meets your needs.)

When using any stock form, however, it is always very convenient to attach stock attachments you have with you or use them to edit any editable agreement.

Although your Mediation Settlement Agreement should not be where every detail is consummated, increasingly, to avoid issues of the wording of the actual releases to come to conclude the settlement, lawyers are being much more specific with how their Settlement Agreements refer to the coming releases.

Indemnification is always an issue.  Having some tried and true language at your fingertips is invaluable.

In personal injury matters, for example, you will want a place to keep your latest MSA (Medicare Set-Aside) release wording handy.  It is rapidly becoming a fixture in many personal injury settlement agreements.

Confidentiality is another growing issue.  Resolution issues already range dramatically from simple confidentiality of the terms of settlement to the more extreme confidentiality of the existence of any settlement. (A full blog posting now in draft.)  For now, I suggest you simply include a  clean copy of confidentiality language acceptable to you, in most cases, so that the precise wording of any “future” release is clearly stated to avoid court fights and even the nullification of your mediation.

Other “things of convenience” in this section should include: 1) a copy of your Tax ID number and 2) a print-out of how you wish checks to be made payable.

This is also a great section to carry with you relevant Bar Ethics Opinions.  One, dealing with the issue of the ethics of client indemnification by an attorney is a must:  See, Florida Bar Ethics Opinion 30310, April 4, 2011.  See, also, Release Language Ethics, etc., November 30, 2011.

And, of course, you will want to include, Mediation Settlement Agreements: What You Should Know, January 18, 2012.  It will always be handy for demonstrating just why you wish to “get it right”!

And don’t forget your calculator! Not every mediation site will have them.

To keep within any reasonable word limitation (and thus even summer readability), it is time to end this posting, at least for now.

(My sincere thanks to long-time friend, former law-partner, Orlando Plaintiff-Attorney, James Ross Davis, for this subject-idea and many of these valuable suggested inclusions.)

But, I  sincerely again invite each of you that review these humble suggestions to please add as a “comment” any additional matters that your  experience has shown important to make your Mediation Notebook just as valuable to you, if not more, than your Trial Notebook.

After all, because you are in mediation much more than trial, you will use your Mediation Notebook even more frequently than your Trial Notebook!

I guarantee it.

Dan, from Mt. Dora, Florida (and Houlton, Maine!)







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