Hon. Thomas Drechsler and Hon. Robert D. Foiles | JAMS
A personal injury lawyer may be ready to make a settlement demand before the other side is ready to evaluate it. That gap can determine whether an early mediation produces meaningful negotiations or becomes a meeting about information still missing from the file.
In a recent episode of JAMS’ “The Mediation Table: Conversations in Conflict Resolution,” Hon. Robert D. Foiles (Ret.) and Hon. Thomas Drechsler (Ret.) explored how counsel can close that gap. Their discussion highlights a central challenge: preparing a persuasive case while remaining open to information that changes its value.
Give Decision-Makers Enough Information to Evaluate the Claim
A mediation submission needs to do more than state a position. It has to give the mediator a basis for questioning assumptions and helping the parties assess their options. In Judge Drechsler’s view:
“I think it’s really important for everyone to understand coming into a mediation that the observations and input and evaluations of the mediator are only as good as the information and data that the lawyers provide. So the more informed I am as a mediator—or any mediator is—the more valuable and productive the session.”
Judge Drechsler
Providing that foundation does not always require extensive discovery. Judge Foiles notes that a case may be ready for mediation before a deposition. Counsel’s early investigation, however, must reach beyond the version of events most favorable to the client.
“I think initially they really have to be the fact-gatherers: a good conversation with your client, probing questions that any good detective might pose in terms of understanding the pros and cons of the client’s story.”
Judge Foiles
A site visit may clarify how an incident occurred. Medical records and wage-loss documentation can support an initial evaluation. For an insured claim, the carrier needs time to review those materials. Following up with defense counsel about missing information can help prevent a demand from stalling before negotiations begin.
Test the weight of important evidence
Digital evidence can unsettle an account the parties have accepted. Judge Foiles described a case in which vehicle data contradicted an eyewitness’s estimate of the driver’s speed and helped the parties settle. If they exist, videos of the event should likewise be exchanged and reviewed before mediation, with attention to what they establish and where interpretation remains necessary.
Even evidence that supports a position may deserve less weight than counsel assigns it. Judge Drechsler described reviewing newly disclosed text messages that a lawyer considered particularly favorable. He found them helpful but not transformative. The lawyer welcomed that outside perspective.
“When you give an honest appraisal like that, you’re helping the parties inform both sides, whether it’s an adjuster, a carrier or the person making the money decisions, how strong the case is and what are the dangers.”
Judge Drechsler
Counsel can put that feedback to work by reconsidering how much of a demand or defense position depends on a single exhibit. Exchanging consequential evidence early also gives the opposing decision-makers time to reassess their position. A late reveal may leave them needing further review time when counsel hoped to begin negotiating.
Explain the injury and assess the client’s presentation
A damages submission should connect the claimed losses to the supporting records. A treatment chronology can show the course of an injury; a wage-loss chart can distinguish time away from work from periods of limited duties or lost overtime. Statements from family members may help explain effects on daily life that a financial calculation cannot capture.
The client’s own account brings a further consideration. Counsel may understand the facts thoroughly yet benefit from hearing how someone unfamiliar with the case responds to their presentation. Judge Foiles describes looking at how that person might be perceived at trial:
“I’m looking at their story. I’m looking at their temperament. I’m looking at whether they can tell the story. Are they a good protagonist of the events, or are they poor?”
Judge Foiles
That assessment can expose a vulnerability that the documents alone cannot reveal. It may be especially useful before a deposition, when the parties have had fewer opportunities to observe how the client handles questions about the case.
Demonstrate readiness while keeping risk in view
A thorough submission also communicates something about counsel’s ability to pursue the case. When the opposing side sees a carefully developed analysis, it has more information about what it may face if negotiations fail. Judge Drechsler explains the broader value of preparing that submission:
“Not only does it help you as a lawyer prepare your case to prepare for mediation with a submission, and it helps you explain to the mediator what’s important in terms of evaluating the case, but it’s really important that the other side knows that you’re ready, that you’re prepared, that you’re thorough.”
Judge Drechsler
For the client, preparation must also support a candid discussion of what could go wrong. Drawing on his experience as a trial lawyer, Judge Foiles describes how involvement in presenting a case can affect an advocate’s judgment:
“I always tell them it’s the lawyer who understands how the client could lose; it’s also hugely important, because we always—when we finish a trial—as an old trial lawyer, you always think you killed it. But the reality is, the jury usually comes back where you assessed it at the beginning, when you looked at all the facts from a bird’s-eye view.”
Judge Foiles
Counsel should be prepared to revisit that earlier assessment when discussing settlement. The potential benefit of continuing the case must also be weighed against litigation costs. A persuasive presentation gives the parties reasons to negotiate; a realistic view of the downside helps them decide which terms are worth accepting.
For the full discussion, listen to the JAMS podcast episode “When Is a Personal Injury Case Ready for Mediation? Evidence, Credibility and Settlement Strategy.”
When one of your cases is in need of a construction expert, estimates, insurance appraisal or umpire services in defect or insurance disputes – please call Advise & Consult, Inc. at 801.641.8304, or email experts@adviseandconsult.net.