Meeting the Challenges of Mediating the Catastrophic Injury Case

This article originally appeared in Trial Talk/Colorado Trial Lawyers Association – February/March 2018.  Reprinted with permission.


Treat catastrophic injury cases with the care they deserve and require, with compassion and consummate care.

Plan your case from the outset and keep planning. Associate with highly qualified attorneys and experts. Use focus groups early and often. Find the right mediator. Prepare a concise mediation statement.

Hire the mediator who honors the words of the Dalai Lama by looking at all aspects of the case, listening to all, and staying open to disparate information. Find a mediator who walks his/her walk with clarity, compassion, empathy, patience, and insight.


Grief, anger, and fear are the three emotions with the widest and deepest display at catastrophic injury mediations. Mediators, advocates, parties, and negotiators must be aware of these emotions and wise enough to gauge and address their impact before, at, and during mediation. Appreciative, respectful, even compassionate listening are valuable tools in building a settlement in such cases. Just listening to the stories another shares about their grief, anger or fear goes a long way towards making closure possible as does relevant self-disclosures which create a common bond.

Setting the Stage [By Counsel]:

Investigate as early as possible and re-investigate. Locate key witnesses and meet with them personally or via an investigator when that is appropriate. Work with governmental agencies as appropriate. Put together a “cast of characters,” a chronology and a story that counsel updates as the evidence evolves.

  • Investigate early, thoroughly, and continuously
  • Develop a positive relationship with opposing counsel
  • Select the best available co-counsel and experts
  • Select the best mediator for the case

Selecting the Mediator:

Mediators are not all alike. It is important to examine the legal and emotional issues that are part of the catastrophic injury case. Determine which mediator has the life experience, mediation experience, and legal experience with a case like yours. Which meditator can listen objectively and compassionately to all parties? Determine who will work the case as hard and as skillfully as required.

  • Experience
    • In life
    • In mediation
    • In the law
  • Ability to listen
    • With objectivity
    • With compassion
    • With a peaceful/open mind
  • Work ethic
  • Analytic ability

Preparing the Mediation Statement

Use the mediation statement to refine your case thinking for trial. Describe the relevant facts and legal issues, highlighting strengths and addressing weaknesses. Make the statement concise and pare down the attachments to the essentials.

Setting the Table [Mediation Design Factors]:

Counsel should work with the mediator to individualize the mediation process to fit the unique dynamics of the catastrophic injury case. The work of mediation in catastrophic injury cases should generally be front-end loaded with a creative mindset. Counsel and their mediator should address and answer questions such as the following:

  • How many parties/teams are there on each side of the case?
  • Who is coming to the mediation on each team?
  • Would pre-mediation meetings with the mediator be helpful?
  • Has the case been mediated before?
  • What is the magnitude of the in- juries, damages, and losses?
  • Who needs to give voice to their thoughts and feelings?
  • What should the structure of the mediation look like?
  • What preparation does my client, my opponent, and my mediator require?

At the Mediation Table:

Pre-mediation design and preparation will involve exploring the mediation process and dealing with questions such as those below. The key ingredients at mediation that enable closure/settlement are creativity, connection, flexibility, and trust. Parties should reflect on the questions below:

  • Should there be an opening session?  If so, what should it look like?
  • How should you handle breaks (scheduled or not) and lunch?
  • What consideration should you give to pace?
  • How should the parties manage the flow of information?
  • How to honor the teaching of the Dalai Lama by remembering to “[l]ook at situations from all angles, and you will become more open.”

The Closing:

Remember as a negotiator, you are looking for closure. Remember your goal, your objective; look for  the path to settlement  through  the roaring thunder of argument. Be enlightened and enlightening, gracious, and clear. Give people “face” and respect. Manage time and expectations. Be open to creative closing strategies.


Catastrophic Injury cases need extra care. Their mediation process should start with the selection of a mediator uniquely qualified by  temperament and experience who can deeply listen to the parties and lead them to a settlement.

It should then move to a mediation process designed to fit the parties—counsel and clients.  While the mediation process should be pre-designed [and front-end loaded] it needs to be flexible enough to fit the ebb and flow of a dynamic mediation process that you have geared to settlement. At mediation storytelling, compassionate and critical listening, appreciation of all aspects of the case, and a will to reach a  settlement  are the necessary ingredients to a successful mediation.


When proceeding with the mediation of a catastrophic injury case consider these sayings of the Dalai Lama:

  • Calm mind brings inner strength and self-confidence.
  • If you want others to be happy, practice compassion. If you want to be happy, practice
  • The best way to resolve any problem in the human world is for all sides to sit down and
  • Where ignorance is our master, there is no possibility of real
  • The ultimate authority must not always rest with the individual’s own reason and critical
  • Love and compassion are necessities not luxuries. Without them humanity cannot
  • When you practice gratefulness, there is a sense of respect toward others.
  • I am just one human being.
  • I feel exhausted if I teach too
  • Disagreement is something
  • I have no trouble
  • Look at all situations from all angles, and you will become more
  • To order to carry a positive action we must develop here a positive vision.
  • In the best practice of tolerance, one’s enemy is the best


1 For a full exploration of this topic see Joe Epstein, Esq., with Susan Epstein, Esq., Grief, Anger and Fear in Mediation, Trial Talk, June/July 2010, at 37.

Congratulations Julie Williamson

Julie Williamson has been selected to the 2017 and 2018 Colorado Super Lawyers list in the practice area of Alternative Dispute Resolution. This honor is reserved for those lawyers who exhibit excellence in practice and represents only 5% of attorneys in the state of Colorado.

Ms. Williamson has been elected to The Best Lawyers in America® for all years since 2006. She was named a Colorado Super Lawyer in Business Litigation from 2009 to 2013 and in Alternative Dispute Resolution in 2014 through 2017. She holds Martindale Hubbell’s highest rating of AV preeminent.

View The Panelists and Their Recognition

Congratulations Joe Epstein

Joe Epstein, Esq., selected to the 2017 Colorado Super Lawyers list.  Joe’s primary area of practice is Alternative Dispute Resolution.

Named by Law Week Colorado 2017 Barrister’s Best Mediator.

Joe Epstein, named as the 2013, 2015, and 2017 Barrister’s Best “Best Mediator” in Colorado, has been recognized as one of the best commercial mediators worldwide, and a top lawyer in Labor and Employment.

Joe is known for his handling a diverse variety of highly emotional and complex cases. A mediator, writer and educator, Joe is Past Vice-President and a Distinguished Fellow of the International Society of Mediators and a member of the National Academy of Distinguished Neutrals -Colorado Executive Committee. Joe has mediated over 4000 cases.

View The Panelists and Their Recognition

Making the Arbitrator’s Job Easier

This article originally appeared in Colorado Lawyer – August/September 2017.  Reprinted with permission.

This article offers suggestions to help counsel achieve cost-effective and successful arbitrations by making the arbitrator’s job easier.

These days, few civil litigators are strangers to arbitration because contractual provisions to arbitrate are common. Put simply, in arbitration the parties have contractually agreed to bring disputes before one decision maker or a panel of three private decision-makers rather than before a judge or jury.

This article describes ways counsel can make the arbitrator’s job easier to facilitate a prompt and successful result at less cost.

“Why should counsel care about making life easier for the arbitrator? Because it is in counsel’s and the clients’ best interests to do so.”

Why Focus on Helping the Arbitrator?

Why should counsel care about making life easier for the arbitrator? Because it is in counsel’s and the clients’ best interests to do so.

First, arbitration is meant to be an efficient means of dispute resolution. All too often, though, parties complain that the arbitration took as long as it would have taken to litigate the case in court. In most cases, it should not be that way. The suggestions below will help counsel achieve a prompt resolution of the client’s problem.

Second, arbitrators cost money. Arbitrators typically are paid an hourly rate. That cost is multiplied for a three-member panel. On top of that, the client must pay the attorney for time spent on the case. The suggestions discussed below help the arbitrator and counsel spend less time on the case, and thus save the client money.

Third, to paraphrase a maxim more often said about moms: “If your arbitrator ain’t happy, ain’t nobody happy.” If parties are in arbitration, they have taken the time to select a qualified and impartial neutral. Arbitrators take seriously their obligation to consider the evidence fairly and decide the case according to the law and the evidence. However, a lawyer who is disorganized or unduly combative not only makes the arbitrator unhappy, but may be damaging the client’s case as well. Such counsel is asking the arbitrator to rule in favor of the client in spite of himself. Don’t do that. Instead, practice in a way that makes it easy for the arbitrator to look favorably upon the client’s case.

A few caveats are important to note here:

■ Arbitrators have different styles and opinions. For example, some like to follow the rules of civil procedure as closely as possible, and some apply the rules of evidence more strictly than others. Know the arbitrator and modify these suggestions accordingly.

■ The author’s views are her own and are not made on behalf of any alternative dispute resolution organization.

■ No criticisms should be taken personally. The author’s experiences as an arbitrator reveal that most counsel are professional, present their cases well, and are a pleasure to work with.

■ While the suggestions in this article are also applicable to cases before judges, the author has never been a judge.

Suggestions for Facilitating Arbitrations

Arbitration should be a fair, efficient, and economical means of resolving disputes. Counsel, as well as arbitrators, can take steps to achieve that result. The following are some practical suggestions to make an arbitration run smoothly.

Confer, Confer, Confer

As judges say over and over again: You need to confer with opposing counsel. Conferring is more than exchanging polarizing emails. It means talking and trying to reach reasonable accommodations. The need to confer starts with the scheduling order and addressing such topics as hearing time, deadlines, discovery limits, and motions procedure. It continues throughout the arbitration process regarding discovery disputes, proposed motions, joint exhibits, admissibility of exhibits, and undisputed facts. Counsel will not resolve every issue, but by conferring with opposing counsel, the most is made of the arbitrator’s time—and the client’s money—by limiting the matters to be raised with the arbitrator to true disputes.

Many arbitrators find it efficient to be readily available for phone conferences with counsel to resolve disputes. In that circumstance, counsel can be tempted to give short shrift to discussions with opposing counsel and instead move directly to a call with the accommodating arbitrator. The result can be that nearly every issue—major and minor—is presented to the arbitrator for a decision. The danger is that the big issues can be lost among the minutiae. The better practice is to try to resolve minor issues with opposing counsel so that the arbitrator can focus attention on the important disputes.

Be Reasonable

Arbitrations are generally less formal than court proceedings. Most pre-hearing conferences take place by telephone. Hearings are held in a conference room rather than a courtroom and usually are not transcribed.

Nonetheless, less formal should not mean less professional. Not every issue needs to be treated as life-or-death, and counsel shouldn’t fight just for the sake of fighting. By statute, the grounds for reversal of an arbitration award are extremely limited. This puts matters such as admission of evidence on a different procedural footing than in a trial by jury, for example. Generally, the only evidentiary ruling that can be grounds for vacating an arbitration award is the arbitrator’s refusal to consider material evidence.1 Thus, the arbitrator will often admit marginally relevant matters into evidence with the proviso that the evidence will be given the weight it deserves. So it makes no sense for counsel to object to the admission of every item of evidence, particularly on grounds of relevance.

That does not mean that counsel should never make evidentiary objections. Well-founded objections can call the arbitrator’s attention to the weakness in a piece of evidence. Also, although it happens rarely, arbitrators sometimes exclude evidence. If evidence is plainly irrelevant and submitted simply to make the other side look bad and prejudice the arbitrator, for example, the arbitrator may well draw the line and exclude the evidence. And all arbitrators lose patience with repetitive evidence. So don’t stop making objections entirely. Just consider whether an evidentiary issue truly matters before making it a matter of mortal combat.

Don’t Over-Litigate

Arbitrators should manage arbitration proceedings as fairly, diligently, efficiently, and economically as possible. They owe that obligation to the parties in the matter before them, as well as to the integrity and trustworthiness of the arbitration system itself. Nonetheless, when counsel and parties complain that arbitration ends up being every bit as long and expensive as a court action, it is important to look not only at the arbitrator’s case management but also at counsel’s conduct. The length and cost of an arbitration proceeding can be directly proportional to the volume and nature of discovery (and resulting discovery disputes) and motions practice. Counsel plays a pivotal role in containing those factors. If counsel stipulate to 20 depositions per side, for example, the arbitrator may be reluctant to impose more stringent limits. Similarly, multiple attorneys may seek to file broad and expensive dispositive motions despite warnings that such motions are rarely granted.

“The better practice is to try to resolve minor issues with opposing counsel so that the arbitrator can focus attention on the important disputes.”

An experienced arbitrator has tools for managing a case efficiently regardless of counsel’s approach. But it is important for attorneys to recognize that arbitration is not just litigation in a different forum. The parties presumably included an arbitration clause in their contract in part because they wanted a faster and more cost-effective means of dispute resolution. Counsel should further those goals by asking only for the discovery they truly need and permission to file only motions that are well-founded, narrowly tailored, and reasonably likely to succeed.

Streamline Motions and Briefs

Arbitrators are most persuaded by written submissions that are well-organized, concise, and to the point. Flowery language, hyperbole, and attacks on the integrity of opposing counsel or parties don’t help. The logical presentation of well-sequenced arguments supported by facts and law is much more effective.

Here are some tips for motions and briefs:

■ Numbered paragraphs, bullet points, or charts can aid in presenting a well-structured and concise argument.

■ A few cases on point with their relevance explained at least parenthetically are more useful than string cites of many less relevant cases.

■ Providing PDFs of important authority with the pertinent language highlighted reduces the arbitrator’s time spent retrieving authority.

Use Experts Wisely

Expert witnesses can be just as useful in arbitration as in court trials. They can provide specialized knowledge and industry information that the arbitrator might not otherwise have. But be judicious and efficient when presenting an expert’s testimony. Although it is important to emphasize that an expert is the “real deal,” an arbitrator is unlikely to be swayed by an unduly detailed presentation of the expert’s credentials. The arbitrator wants to hear the expert’s opinion. Consider using the expert’s curriculum vitae as an exhibit that the arbitrator can read, and refer only briefly to the expert’s credentials during testimony.

Also, take advantage of the fact that an experienced and intelligent decision-maker is presiding. Don’t let the expert take an extreme position that, while purportedly favorable to the client, defies common sense, undermines the expert’s credibility, and may damage the trustworthiness of the entire case. Understand the expert’s analysis and look at it with a critical eye before the hearing.

Organize, Organize, Organize

Good organization—whether in legal writing, presentation of testimony, or arrangement of exhibits—is golden. Nothing makes an arbitrator happier than a well-organized and carefully pruned case presentation.

Organization, or the lack thereof, is most evident in the selection and presentation of exhibits.

“An experienced arbitrator has tools for managing a case efficiently regardless of counsel’s approach. But it is important for attorneys to recognize that arbitration is not just litigation in a different forum.”

Here are some best practices:

■ Take seriously the arbitrator’s request that counsel agree on joint exhibits. Typically, the authenticity and relevance of most exhibits are not in dispute. Make them joint exhibits, arrange them logically, and (if using hard copies) fit them into one notebook if possible. And only make a document a joint exhibit when all counsel are waiving objections to the admissibility of that exhibit. Objecting to the admissibility of a joint exhibit during a hearing causes confusion.

■ Pre-number exhibits and provide separate exhibit lists for joint exhibits, claimant’s exhibits, and respondent’s exhibits, with dates and descriptions. It is easiest to include all pre-numbered exhibits in the notebooks, whether stipulated or not. Then, at the end of the hearing, counsel can provide the arbitrator with an agreed list of all admitted exhibits so that all other exhibits can be removed from the notebooks.

■ Use one color of notebook for joint exhibits, a second color for claimant’s exhibits, and a third color for respondent’s exhibits, so that it is easier to refer to the notebooks at the hearing. Agree on notebook colors with opposing counsel, resting assured that the arbitrator will attribute no significance to the colors chosen. Label the spine and front of each notebook with the pre-numbered exhibits it contains.

■ Resist the temptation to take a “kitchen sink” approach to exhibits. If that proves impossible, at least organize exhibits in such a way that the documents likely to be used are in the first few exhibit notebooks (organized chronologically or in another logical sequence) and the others are in the last notebooks. (Odds are that the last notebooks will never be opened.) That arrangement minimizes the cumbersome juggling of notebooks for witnesses, the arbitrator, and counsel at the hearing.

■ Use excerpts of voluminous documents, highlighted as appropriate, but have one copy of the full original documents available at the hearing in case opposing counsel objects to the excerpts selected.

■ Use summary charts of complex information or information that requires reference to multiple different exhibits. List in the summary the exhibit numbers of the supporting documents, if applicable. Be sure to provide the summary exhibit to opposing counsel before the hearing along with the documents summarized so that opposing counsel has the chance to determine the summary’s accuracy.

■ Timelines and demonstrative exhibits can also be useful. Bear in mind that in a complex case, any presentation that clarifies the sequence of events is appreciated. As with summary exhibits, provide timelines and demonstrative exhibits to opposing counsel before the hearing.


The foregoing suggestions are not rocket science. In fact, many echo the advice for good advocacy typically given by judges to litigators who appear in their courtrooms. That advice is equally wise when applied to arbitrations. It serves all concerned to make the arbitrator’s—like the judge’s—life easier.

NOTE 1. See Colorado Revised Uniform Arbitration Act, CRS § 13-22-223(1)(c); Federal Arbitration Act, 9 USC § 10(a)(3).