Jan 17, 2019

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 your client must attend.

But major 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 in  seems like 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:

  1. The mediator can find out who will be attending the mediation session.
  2. Once who will be attending the meeting is known, determining who makes decisions for each level of coverage is simplified.
  3. If the critical decision makers are not present at the mediation, it can be made clear to the defense; the injured plaintiff and attorney will also not attend.
  4. Consulting the qualified mediator is usually possible prior to 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. After all, it has been hard on 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. This person can make a big difference in the case. Preparation is key for the plaintiffs. They must present a cogent argument. Mediators use private sessions in the first visit with parties. So this is where they can listen to the plaintiff’s case. And this can help in negotiating the claim for its real value.

In the past, using private sessions was to run numbers. This session is not useful when the plaintiff has 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 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 serious 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.