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.
It involves specific procedures, expectations, and actors. Below is a closer look at the probable outcome of the mediation and what a person can expect.
Below is a step-by-step explanation of the usual mediation 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 fair settlement amounts. 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. In some instances, they may even respond by saying they will not even entertain answering to a cheap offer. Further, the party may think that they are bidding against themselves. 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.
Indeed, 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. 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 is the name of the game here. The goal of each party is to show a reachable settlement range. So communication in mediation is indirect, Little says. And this means that neither side will 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.
In Little’s book, one scenario 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 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 disagree 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.
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 claim’s legitimacy.
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 their weaknesses and strengths. And that will enable the value of the chance to be determined.
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.
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. Even before opposition to a Motion for Summary Judgment, they can show off the entire case’s value. Typically, a paying insurance adjuster, defense attorney, or paying client must attend.
But parties did not handle significant personal injury cases in this same manner in the past. And it seems to be going backward. But this is good news for hourly defense attorneys who enjoy billing.
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 defendants can delay the settlement discussions without a responsible party with money in attendance. 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.
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.
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 it to influence the insurer’s viewpoint about the claim.
These presentations can be a deciding factor, while the mediator talks privately 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 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 personal aspects of the case. And this can help in negotiating the claim for its actual value.
In the past, they were using private sessions with the victim to try and run numbers. But this session is not practical 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 negotiation 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.
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, our Los Angeles injury lawyers 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 items.