It
was the early 1990s and most attorneys started acknowledging that because of
the pending OMPP legislation, they were going to have a verbal threshold by
statute as well as compulsory mediation, under what was then the new insurance
legislation. Attorneys such as personal injury lawyer started
learning about the process, taking courses, and adapting both their advocacy
skills and adversarial styles to a new process. Looking back after seventeen
years, a personal injury lawyer has
come a very long way. Today, in the North Carolina, a personal injury case that
is litigated to a verdict is the exception. Approximately 1.5 percent of all
personal injury cases that are launched make it through the litigation process
to verdict with personal injury lawyer. A small percentage is discontinued and
the balance, something like 95%, are simply settled outright or mediated. Over the course of time, we have learned a
great deal about the process and we have made it better, more user-friendly,
and we have ultimately increased public confidence; not only in the mediation
process but more importantly in civil justice, as well as the legal profession
itself.
Clients
with personal injury resulting from car accidents leave
the mediation with the feeling that they have been well served by the personal injury lawyer.
On the other hand, the litigation process to the civilians is costly,
incomprehensible, and unpredictable. I
intend to spend some time discussing what we have accomplished in terms of
skill levels, presentation factors, advocacy, and negotiating styles, after
which I will deal with some suggestions, criticisms and current thinking with
regard to the evolution of ADR and the mediation process. As counsel representing a client at mediation
your goal in preparing the mediation memo is to have it set out the issues in a
clear, concise way so that the mediator can use that document as a road map
which will enable him or her to traverse the dispute in the case of car
accidents. In this regard, using numbered paragraphs is very helpful and refers
to them in an opening statement easy to follow. There is definitely a trend to keep
the mediation memos shorter and this is good. If you do quote from any expert’s
report in your mediation memo, that report should be appended to the memo as an
exhibit. It is not necessary to send the mediator every piece of paper that you
have accumulated in the file. If there are extensive medicals, you can provide
an executive summary of those documents in addition to the memo and exhibits.
The memo is your first opportunity to convince your opponent that your
arguments are sound and will carry the day in cases like car accidents. It is
also important to persuade the mediator that your theory of the case is
compelling so that in caucus your arguments will be reinforced. A narrative style of memo is the easiest to
read, and is a style that I personally prefer. Using bullet points in certain
kinds of cases can have a kind of shock value. It creates an impression that
you are very confident in your case and certainly tightens the focus on the
issues. It means that the mediator has to work harder to find out what the case
is really about and that may be a risk.
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