Tips for Malpractice- Proofing Your Next Mediation

1. Prepare the client for the “settlement pressure” of mediation. Have the client acknowledge in writing the decision whether to settle is his and his alone. Settlement pressure will come from all sides – perhaps even from you. Make sure your client is prepared to handle it. We see malpractice claims every year where the allegation is my lawyer coerced me into settling.
2. If others will be significantly affected by any settlement, have them present at the mediation. Often, the plaintiff is not the only person significantly impacted by a settlement. In a serious personal injury or Workers’ Compensation case, the spouse or significant other may be affected almost as much as the plaintiff himself. Try to have that person at the mediation. Yes, that may mean more trouble getting to an agreement, but you would rather know the spouse disagrees with a proposed settlement before your client signs the agreement than afterwards. Afterwards, you may encounter the phrase referenced in number 1: “My lawyer coerced me into settling!”
3. Take good notes and have your client initial agreement to important decisions made. This may avoid a misunderstanding later.
4. Don’t put your client through a 12-hour mediation. You may be used to it, but your client will likely not be. It’s liable to be your client’s first mediation stuck in a small room with a bunch of suits. Be conscious and considerate of your client’s physical and mental state. He cannot make good decisions if he is sick, stressed to the breaking point, hungry, tired, etc..
5. Go into the mediation with a “must have” list of key settlement terms and a “wish list” of settlement terms. Refine your list as you progress through the day. This will help you put together the final mediated settlement agreement. Have your client initial his consent to the final agreed-upon terms.
6. Reduce the agreed-upon settlement to writing before leaving the mediation. Make sure to include all material terms important to your client.  If it’s not in the mediated settlement agreement, you may not get the other side to agree to it later. Capps v.NW Sign Industries of North Carolina, Inc., 185 N.C. App. 543, 648 S.E.2d 577 (2007).
7. Don’t let your client agree to sign a yet unseen formal Release “in a form acceptable to the defedant.” Your client may be held to terms he did not agree to at the mediation. Santoni v. Sundown Cove, LLC, 195 N.C. App. 130, 672 S.E.2d 102 (2009).

Mark Scruggs is a claims attorney with Lawyers Mutual specializing in litigation, workers compensation and family law matters. You can reach Mark at 800.662.8843 or at mscruggs@lawyersmutualnc.com.