I've been singing the praises of mediation lately, also known as "alternative
dispute resolution." Many, if not most of my clients, are new to
personal injury litigation and are initially mystified by the negotiation process. What is mediation
and why can it be effective?
A mediation takes place after a lawsuit has been filed on a case (in a
situation where pre-litigation settlement was not possible) and during
or after the discovery process. Many times, the more costly case expenses
(hiring experts, taking doctor and expert depositions) are held off until
it's clear that the case cannot and will not settle at mediation or
without that expert testimony. I recommend mediation to clients when the
defense signals to me that they they are willing to negotiate in good
faith, and when there is enough information (discovery) for the defense
to evaluate the case.
Both the plaintiff and defense choose a professional mediator (a 3rd party
neutral who has no interest or relation to the case) who's mutually
agreeable to both sides. The mediator is an attorney (usually a former
plaintiff's attorney or insurance defense attorney who has tried many
jury cases) who has gone through
specialized training in mediation.
The location is always at the mediation firm's office for neutral ground.
It is a much more relaxed and informal atmosphere than a courtroom.
Both sides come together in a meeting room and present their version of
the case and why their position has support. Then the two parties go to
different rooms for the rest of the mediation while the mediator talks
to each side.
The mediator is invaluable in giving clients another voice of experience
and and perspective.
- Evidence in the case is reviewed and weighed and evaluated. The mediator
is also skilled in working with defense attorneys and pointing out reasons
why the insurance company is taking risks in presenting the case to a
jury (risk of a big excess verdict).
- Throughout the day and with the mediator going back and forth between the
parties and talking it all out, the two sides eventually should arrive
at a number that is acceptable to both parties. This avoids additional
client expenses in cases where both the client and the insurance company
are in within a reasonable range of settlement expectations.
Example: Client M seriously
injured in a car accident would expect at trial to be awarded approximately $100,000 based on medical
expenses/pain and suffering; the insurance company has indicated that
it might be willing to pay $60,000*. A $40,000 difference could be eventually
resolved by a $85,000-$90,000 settlement at mediation. The client has
a "bird in the hand" amount so to speak, does not have the inconvenience
of trial or additional case expenses, and she can go on with her life,
pay outstanding bills and work on her physical recovery--not litigation.
When is mediation not appropriate? When the insurance company and/or their
attorneys shut down any attempts to discuss the case or respond to negotiations
with unreasonable offers. Many times it's clear to me that the litigation
needs to be full-steam-ahead, we press forward to trial, and that mediation
would be fruitless and a waste of time for my client and me.
Example: Client H suffered serious
head and leg injuries in a truck accident with medical specials (expenses) of $150,000 due to the clear liability
of the insurance company's insured. Depending on the injury, any permanent
impairment, lack of any pre-existing injuries, etc., a reasonable settlement
amount (taking into account pain and suffering) might be $350,000-$500,000**.
If the insurance company offers $20,000, that signals to me that the defense
is unserious about this case. If they continue to generate low offers
in the face of a serious case as the medical records and expert depositions
come in, I simply ask the court for the earliest trial date possible.
I do not care to waste a day of my client's time and emotional energy
attempting to mediate in those situations.
Generally, mediation is a very effective way for clients to get a professional's
unbiased yet experienced opinion of their case from someone who is not
their attorney. It is an excellent way for the defense to hear the plaintiff's
evidence, meet and evaluate the plaintiff (and see a real person who's suffered) and consider possible jury verdicts if they were not to settle.
*Hypothetical client and amounts given. Each case and client is different.
**Again, hypothetical client and amounts given. Each case and client is