Jan 8, 2019

Understanding Mediation for Personal Injury Victims

Word Cloud with Negotiation related tags

Mediation and Cases.

At the CMC, the court will set up a mediation or arbitration date. These are meetings between both sides, where a judge or professional mediator helps both sides try and settle. So the idea is to come up with a dollar amount and avoid a trial and more expenses associated with litigation.

Mediation involves negotiations conducted by impartial parties. The idea is to resolve issues. There is a more particular meaning of reconciliation when you are referring to a personal injury case.

It involves specific procedures, expectations, and actors. Below is a closer look at the probable outcome of mediations and what a person can expect.

Mediation Participants:

The Mediator – A personal injury case mediator is someone that is impartial to the case and has obtained a certificate for dispute resolution. And in many situations, this is a judge or a lawyer that doesn’t have an active interest in the case and an understanding of personal injury law. Last, the mediator's fee is typically a flat fee. And the plaintiff and defendant usually divide the costs of the fee, paying their portion. A mediator’s interest in resolving disputes often results in more intervention work, as their reputation improves with each successful resolution.
Counsel for Defendant – This is the lawyer or lawyers that represent the defendant. But they generally have a thorough knowledge of the aspects of the case and will often lead to opening arguments that are in the best interests of the defendant. They also take part in the negotiation process for settlements the defendant may seek.
Insurance Adjuster or Carrier for Defendant – An insurance representative (adjuster) for the accused will represent the insured. In some cases, the defendant attends this part of the mediation. But in some situations, they do not. The adjuster will usually participate in mediations, but not always. Adjusters often have the last say on the amount of settlement offered. And they also must accept a final demand for an agreement.
Counsel for Plaintiff – This is a personal injury lawyer that represents you the plaintiff. So they present the defense with a short opening presentation about the strong points of your case. They lead negotiations for the settlement and then will defer this to you.
Plaintiff – This refers to the individual or their legal representative that brought the claim about. Legally, the plaintiff has the last word in determinations made for amounts demanded, as well as decisions to accept settlement amounts.

What Should I Expect in a Personal Injury Mediation?

Below is a step-by-step explanation of the usual mediation process.

The parties involved enter the room – Both the defendant’s and plaintiff’s sides go into a conference room. All sit on opposite sides of a conference table. Also, the mediator usually remains seated at the head of the table.
The process of mediation – Here, the mediation process gets explained in about ten minutes. Hopefully, this will foster a favorable settlement environment. So decision making parties need to remain in attendance to obtain a good-faith resolution. As an encouragement to settle, the mediator may also explain the benefits of reaching an agreement and the uncertainties involved with going to trial.
The plaintiff’s counsel presents the case – The plaintiff’s attorney is invited by the mediator to submit a presentation of the strong points of the case. This process can last only five minutes, or it can take as long as two hours. While they may attend, the client does not participate in this process.
Defendant’s counsel presents the case – Next, the counsel of the accused gets an opportunity to show the strong points of their situation and answer any disputes of the plaintiff. They generally also highlight the fact that each party is in attendance in good faith. This process can last anywhere from a few minutes to about one hour. While they may attend, the defendant does not participate in this process.
Parties of the case separate –At this point, the mediator will request that each of the parties divide into different conference rooms. While this frequently happens before the first demand, it can also occur after.
Opening demand gets presented – Plaintiff makes an opening demand. (opening settlement offer).
Mediation starts – Defense counsel then discusses the demand with the mediator. A counter-offer normally will be transmitted to the other party, and so on. This process continues, and in some situations, only lasts about 30 minutes. But sometimes the back and forth takes several days.
After negotiations – At this point, parties should have an agreed number for a settlement. Or the mediation will end with no settlement number.
Draft documents for settlement get created – After reaching terms, signatures are added to settlement documents. This process usually takes around 30 minutes.
Claims get dropped, or settlement funds get distributed – The settlement funds transfer timeline will be specified in the documents. Also, the plaintiff signs releases of defendant's potential liability. The payment deadline will usually range from as little as 15 days to 60 days.

Ehline Law Firm PC lead counsel for Dana Point Car accidents law firm. — Ehline Law Firm lead counsel for Dana Point Car accidents law firm.

Communicating During the Negotiation Process.

One of the things that people think of when they think of personal injury mediation is recovering money for a seriously hurt or dead victim. Typically a traffic accident is what led to the negotiation in the first place. But now the parties are there; it affords each side to size each other up, not just talk about money.

And it is not a clear-cut process what the first offer will be. So too, rarely will the defense know what the plaintiff deserves or should settle for? But instead, it is a starting point—a floor and not a ceiling.

In some cases, if it is not handled correctly, one party or the other can come away feeling insulted. Also, in some instances, they may even respond by saying they will not even entertain answering to a cheap offer. Further, the party may feel that they are bidding against themselves. So to them, it is a waste of their time since others are failing to act in good faith. Their issue is to have the other party make the first offer. Or they need to send them a dangerous message.

Is Mediation All About Money?

It is true that mediation in civil court litigation claims is generally about money. This mediation will discuss the facts, liability, and bargaining, with the mediator bringing the numbers to each of the parties. At the same time, the mediator will attempt to keep the parties at ease and confident that they will be able to reach an equitable settlement through negotiations.

In some cases, before reaching the bottom line, one or both parties can become frustrated, tired, and angry. So this results in them ending the negotiations. Mediation is not a fun or relaxing process. And the only real relief felt by either party is when a settlement is reached that is agreeable to both sides.

"How to Mediate Insurance Claims and Other Monetary Disputes by J. Anderson Little" and published by the American Bar Association in 2007 is an exciting read. In fact, any legal professional and mediator should read it since it focuses on how parties communicate in negotiations about money. In his book, Little discusses how individuals interact. And it tells the form of communication going back and forth between the parties.

Poker Face?

Poker face is the name of the game here. The goal is to show the range at which a settlement can be reached. So communication in mediation is indirect, Little says. And this means that neither side is going to tell the other side exactly what they will settle for. Also, this can result in each party being inadvertently being misled.

But deception is also how frustration and anger can start during this process. So rather than the negotiations moving forward, it tells how they fall apart. The book was initially written for mediators. But it shows great insight for other legal experts who find themselves and their clients in the mediation process. Having a mediator who is insightful and resourceful is an advantage to all.

Plaintiff Starting Too High Kills Negotiations?

One scenario in Little’s book is when a plaintiff's case has been evaluated between $35,000 and $50,000. So $35,000 is the bottom line that the plaintiff should expect to settle for in mediation. And $50,000 would be the top range that would be a settlement amount or court award.

So if the plaintiff goes into mediation starting high at $100,000, using the theory that unless they start high, they would not be able to settle for the amount they deserve. This process will usually not work as thought. After all, the other party that will feel this is a ridiculous demand. So they will counter exceptionally low with a figure such as a couple a thousand dollars. That will enrage most plaintiffs who will counter with a number that is a bit lower, such as $98,000.

This is not an uncommon situation during the negotiation process when money is involved. And it is also common for a plaintiff to ask for much more than their case supports when analyzed. When this happens, the defendant either feels they cannot afford this amount or will not settle the case at the increased amount.

Each party preparing to go into mediation will need to evaluate their case to get a rough idea of what they'll think is fair. That way, they can determine a strategy for the negotiation process. Now they will be able to communicate with the other party. Then they can reach the range where it will be fair for both the plaintiff and the defendant.

How is Evaluation Done?

Evaluation of the case is essential and starts by using the facts from the plaintiff’s side of the case and the defendant’s side. This evaluation includes using the laws of discovery. But it is up to each team to decide what other facts they should release to be evaluated by the other side. As Little explains, this information will need to be provided during mediation to prove the legitimacy of the claim.

The information is prepared in a way that will be persuasive in the negotiations and applies the law. This evidence will allow the determination of what parts of the case have its weaknesses and strengths. And that will enable the value of the case to be determined.

But it isn’t possible to know what offers to accept or the amount to counter, without knowing the value of the case.
So going into negotiations, you need this number.
Little also discusses that the evaluation of the facts and the amount settle for is up to the parties involved and not up to the mediator.
But the mediator can be extremely helpful during the offers and counter amounts.
The one question that can be pondered when determining the value of a case is what it would settle for if the case went to trial instead of mediation.

What would the cost of the trial be, and what would the possible outcome be? These are ways that can help the plaintiff and the defendant to be prepared for the case. Now they can go into mediation and have success without going to trial. But rather than reach a reasonable settlement, they can arrive at a great one. I will be writing more on this subject, as I become more experienced in personal injury mediation.

Because of the uniqueness of a situation, each mediation process remains significantly different.

Personal Injury Mediation Approaches.

Most legal practitioners know that mediation is an excellent chance to settle a case. It allows parties to display their client's case in its best light, before a trial. So even before opposition to a Motion for Summary Judgment, they can show off the full case's value. Typically, a paying insurance adjuster, defense attorney, or paying client must attend.

But significant personal injury cases were not handled in this same manner in the past. And it seems to be going backward. But this is good news for hourly billing defense attorneys who enjoy billing.

Where is the Decision Maker?

More often today, the plaintiff’s attorney is finding the decision-maker absent during mediation. And this remains especially true with many insurance companies. Sadly, the settlement discussion can be delayed without an attending responsible party. And it seems like, in multi-party cases, each defendant points at the other one.

Things like this complicate issues and operate as delay tactics. After all, no one is there who can pay. So it needs to go through channels to be approved. And now it's harder to settle the case at an amount fair to the client. There are ways that the plaintiff’s lawyer can stop this.

For example:

The mediator can find out who will be attending the mediation session.
Once who will be attending the meeting is known, determining who makes decisions for each level of coverage is simplified.
If the critical decision-makers are not present at the mediation, it can be made clear to the defense; the injured plaintiff and the attorney will also not attend.
Consulting the qualified mediator is usually possible before mediating. So hopefully, he or she will discuss issues regarding decision-makers.

So don't be a slacker. Pin these people down. Even ask the judge to require the attendance of a decision-maker with authority. Otherwise, shut it down.

What About Mediators and Creative Settlements?

Settlements in personal injury cases have changed in the way the mediator assists in reaching solutions. They have become more creative. So now, they use techniques to help in settling personal injury cases. One of these is joint mediation sessions. Here, the mediator can use to influence the insurer's viewpoint about the claim.

In a joint session, the plaintiff’s lawyer can present the liability facts.
That way, the mediator can brief people and include a PowerPoint presentation. So they can show the impact this has had on the lives of the parties. After all, it has been hard for the claimant and their family.

These presentations can be a deciding factor, while the mediator talks in private with the insurer’s representative after the mediation session has concluded. One of the other advantages of the joint meeting is that it allows the plaintiff or the family to be seen and heard by the adjuster.

The Payor Must Attend?

The payor is the money person and can make a big difference in the case. But preparation is vital for the personal injury plaintiffs because the plaintiff must present a persuasive argument. Mediators use private sessions during the first visit with parties separately. So this is where they can listen to the plaintiff’s case where there is no one around to hear the more confidential aspects of the case. And this can help in negotiating the claim for its real value.

In the past, they were using private sessions with the victim to try and run numbers. But this session is not useful when the plaintiff had sustained significant emotional injuries. For example, imagine a family has suffered the loss of a loved one. They require time for the emotional impact statements, etc. Also, overly emotional people are unable to reason during the negotiations process.

So the mediator must now negotiate through the plaintiff’s lawyer. Mediators must have excellent listening skills, empathy, and patience. They must realize how difficult this situation is for the applicant. In private sessions with the plaintiff and the defense, both will permit the mediator to examine improbable assumptions about the claim.

This is why the old way of mediating claims no longer works:

Premeditation Preparation: Premeditation preparation takes a lot of time. Reviewing briefs and discussing the facts with the attorneys before the mediation helps the mediator. But the mediator needs to know the salient points. Otherwise, reconciliation won't work. During these discussions, the mediator may determine joint or private mediation sessions are better. This meeting can also help in determining material issues. That way, the plaintiff and defense can agree on issues that are hard to pin down. This face to face can also show the personalities. Plus, it identifies who the decision-makers are. The mediator can research discovery issues, jury verdicts, and coverage issues. So they will be alert to signals when a settlement agreement is near.
Follow-up: When a claim is at a stalemate in a complaint with a severe injury, it is not uncommon for it to end this way. Mediators have the experience to know this happens. And in some cases, they find a way to move past this point. Other channels may include depositions, medical examinations, expert consultations. And there may even be insurance management reviews. Then the mediator will follow-up with the lawyers. They do this to find out if parties remain open for further negotiations. Maybe these will lead to an eventual settlement. Mediators often do this at no extra charge. Successful personal injury cases require preparation and strategy on the part of the broker.

But if the mediation ends in a stalemate, it could still result in a later "mediator's proposal." And you could yet settle via fax machine. In our future discussions, we will go over some of these other issues. We hope you enjoyed this article on tactics and strategies for successful mediation in injury claims. And we invite you to read more of our articles.