Texas Injury Mediation Preparation and Negotiation

The demand may have been sent months before the mediation. Since then, a witness could have given a different account, or the treating doctor could have changed the plan. Bring that newer information into the discussion. The parties are negotiating a case that may have moved on from the one described in the letter. They still have to weigh the proof, litigation costs and the client's priorities; the mediator cannot make missing evidence appear.

For the broader framework on evidence, damages and settlement, see the Texas injury claim value and litigation hub.

Update the case range before the session

Look back at the evaluation used for the demand. Compare it with the witnesses' latest testimony, the experts' opinions and the treatment chronology. A changed opinion may affect either liability or the damages range. On the medical side, do not combine billed charges with payments, adjustments and contested balances. Show those separately, and explain the assumptions used for future treatment. If the range remains the same after that review, counsel should be able to explain why.

Put the gross offer on a worksheet. Under it, show the fee under the client's agreement, expenses already incurred and reimbursement amounts. Where an amount is being negotiated, identify it as unresolved rather than filling in a convenient number. The balance is an estimate of the client's net, not a promise. Counsel should also explain what additional work or delay may cost. That is how a demand or possible verdict becomes a useful discussion about the money the client might receive.

Know who can negotiate and what information is missing

Ask who will attend and who must approve an offer. An attendee may need to reach someone else before changing a position. Also list the unanswered questions about coverage layers, policy information and reimbursement balances. Decide which answers are needed before mediation. If the session goes ahead without one, tell the client how that uncertainty affects the decision instead of treating the missing information as settled.

A first-time participant may hear a bracket and think it commits the other side to a particular amount. Explain beforehand what opening positions, brackets and a mediator's proposal mean in this negotiation. None replaces the client's instructions. Counsel and client should agree how they will confer privately, review an offer and decide whether to accept before an acceptance is communicated.

Make the evidence packet focused and usable

Start the packet with the issue that is holding up negotiations. For a causation dispute, that may be a few treatment records and part of an expert's testimony. Other issues may require proof about responsibility, notice or conduct, along with the records supporting past bills, future treatment and lost income. Include the terms requested for settlement. An exhibit index and a short chronology give the reader a route through those materials; page references keep that reader from having to search the whole file.

Check the mediator's submission instructions before sending anything. There may be material counsel intends only the mediator to see. Put it in a separate, clearly marked submission instead of attaching it to the packet for the other side. Counsel needs to decide what can be shared and address confidentiality questions in advance. Delivery to a mediator is not, by itself, a complete answer to every later question about disclosure or protection.

Plan a negotiation without losing the client’s priorities

Choose an opening position with a reason behind it, then discuss the range and how the client will make decisions. Money may not be the only obstacle. A payment date, a release limited to the intended claims or a workable way to address a disputed reimbursement demand may matter to the client. Explain what each concession buys before making it.

If an offer comes with pressure to answer quickly, take it through the client discussion anyway. Who signs the release? What does it cover, and when is payment due? Review those answers with the estimated deductions. Leave a disputed lien or unresolved coverage question on the page as an open condition. Increasing the gross offer has not necessarily resolved either problem.

Check the terms before treating an agreement as complete

Consider a discussion of $500,000 where the proposed release also reaches unrelated claims against someone who is not a party. Agreement on the dollars does not answer the release question. The written terms need to identify the payor, claimant, claims and people released. They also need to address the method and deadline for payment, signatures and lien responsibility. Before anyone signs or communicates acceptance, counsel should compare those terms with what the client actually authorized.

Before leaving, record the offers, any acceptance and the issues still open. Assign the follow-up work and its deadlines. If no settlement results, tell the client what happens next in the litigation and whether the discussion changed the assessment. A session may identify a missing record or narrow a dispute even when the parties remain too far apart to agree.

Texas Rule 1.02(a)(2) generally directs a lawyer to abide by a client’s decision whether to accept a settlement offer, subject to the rule’s exceptions and other law. See the Texas Disciplinary Rules of Professional Conduct.

Related guidance

For general personal-injury services, see the firm’s personal injury practice areas.

This is general information about Texas injury-claim mediation, not advice about a specific session, offer or case. Evidence, settlement authority, release terms and any recovery depend on the facts, agreements and applicable law. Reading it does not create an attorney-client relationship.