An attorney should be prepared with information about settlement proceeds before mediation. The attorney should have a qualified settlement planner prepare several documents prior to meeting with the defendants. An attorney should have an estimate of the current cost per $1000 of an annuity in the current market. The settlement planner should also secure medical underwriting based on the clients medical records. An "annuitized" life care plan will also be valuable approaching mediation.
During the mediation, the defense will likely argue that their own structure plan is the only or best for your client. It is not uncommon for the other side to bring up myths such as "corporate policy mandates we use this company for structured annuities" or "you must use an approved broker." The important thing for a plaintiff attorney to remember is that there is no need to argue over a structure. The proper response is negotiate for the highest present dollar value possible and reserve the right to structure later. The following is sample language to be included in such a settlement:
"The parties agree to settle for consideration of cash and future periodic payments, if any, the details of which to follow within the next 14 days, all of which will cost the defendant $X. Defendant agrees to . . ."
This negotiation based on "cash cost" allows the plaintiff and the plaintiff's settlement planner to design the settlement allocation that is appropriate for the plaintiff, not the defendant. When the annuity company and settlement planner are both chosen by the client, plaintiff attorney's liability during the time of settlement is dramatically reduced. Plaintiff attorneys should still be willing to cooperate with the defense by executing the necessary documents (such as the Qualified Assignment).