As we have indicated in earlier posts, there are different ways to secure a favorable recovery for our clients’ personal injuries. One way is mediation. We have enjoyed good results with it in the right case.
What is mediation and how does it work
Mediation is an informal process to settle a case using a neutral third party. This person is often a retired judge, or an attorney specializing in mediating cases. The parties appear before the mediator at a set time and date. The mediator then works with the parties to help them settle the case, if possible.
The process starts when both sides feel they have enough information to evaluate the case. The attorneys for the parties then discuss whether their principals – the injured party and usually the insurance company for the defendant – want to mediate the case. If they do, the attorneys choose a mediator, and split the mediator’s fee equally.
The mediator and the attorneys for the parties then hold a pre-mediation conference, usually by telephone. They work out the ground rules for the mediation, the schedule for submitting the mediation briefs to the mediator, the time and date for the mediation, who will attend, and whether the mediation will be virtual or in person.
The attorneys for each side then submit a written legal summary of the case to the mediator, called a mediation brief. These briefs summarize the facts of the case, the governing law, and the settlement offers to date. They also may list other settlements or verdicts which are similar to the amount at which the parties think the case should settle.
When we prepare a mediation brief, we also attach legal papers, the testimony of the parties and witnesses, photographs, demonstrative art, medical records, and expert reports or summaries. Before we serve our mediation brief, we send a copy to our clients for their input and review.
The mediator receives and reviews these mediation briefs and attachments before the mediation to become familiar with the case.
The day of Mediation
On the day of the mediation, we show up with our clients – either by Zoom or in person. The mediation can take all day or three or four hours.
There is some good news for you as a client at a mediation. The process is usually not adversarial or confrontational. Everyone works together to see if they can settle your case. You don’t need to worry that the opposing party or their attorneys will be nasty or attack you. Our clients are usually quite comfortable and relaxed once they understand this.
Here is some more good news. At the mediation, you don’t have to testify, say anything, talk to opposing attorneys. You don’t do anything but listen. Isn’t that great? You are there only to accept or reject the best settlement offer presented to you at the mediation.
So if you are not saying anything, who is? The mediator and the attorneys are for the most part. The mediator will give an opening statement. It explains the purpose of the mediation, and is designed to put you as the client at ease. Sometimes the attorneys give opening statements. In our experience that can hurt the process. We therefore don’t agree to them.
Then the parties and their attorneys go to separate breakout rooms – virtual or physical. A breakout room is a private area reserved for each side where they stay during the mediation. The mediator goes back and forth between each breakout room relaying offers and demands, and discussing the case with each party. This back and forth goes on until a settlement is reached or the mediation ends.
To settle the case, some mediators suggest a reasonable final settlement amount. Others don’t. A mediator also points out to each side the problems with their case. It is easy to see a case with rose colored glasses. Mediators don’t have that problem. The parties usually benefit from hearing about the strengths and weaknesses of the case from an independent third party with fresh eyes on the case.
Often there can be little progress until late in the day, when the parties put up their best settlement offer. A good mediator knows when to push, and when to let the process play out.
It is not uncommon that when a case settles at mediation, neither side feels that they have gotten everything they wanted. According to experienced judges and mediators, this defines a good settlement. Both sides have compromised and the final result is probably fair to both of them. Of course, because mediation is an informal process, no party has to settle the case at the mediation. If the parties do not agree, the case will not settle.
Why mediation could benefit you as a personal injury client
Mediation can work because it requires effort and money from both parties. The principals, meaning you as the client and the insurance company adjuster, have to show up and be present. This buy-in helps the parties put forward their best efforts to resolve the case.
The benefits of mediation are (1) the potential to settle a case without the costs to bring a case to trial, particularly the cost of the medical and other experts appearing for trial, (2) the case is finally settled, with no trial, or appeal, and (3) the case is resolved earlier.
Caveats on mediation
There are things to guard against in mediations. Some defendants or their insurance companies use mediation to wear down our clients by raising and then dashing their expectations. In other circumstances, we have seen a defendant or its insurance carrier low ball its settlement offers. (Those cases don’t settle at mediation.)
To combat this, we advise our clients that they should have zero expectations about the mediation. It the case settles, great. If it doesn’t then the client has not lost anything. She just moves forward to try the case.
We further require that if the case is to be mediated that the defendants come up with an offer before the mediation which shows that it is possible the mediation will succeed.
What happens if the parties settle the case at mediation ?
If the case settles at mediation, it is over. The injured client receives a settlement payment to conclude the case. At the mediation, to reflect this, the mediator usually prepares a “term sheet.” This is a one page document that lays out the essential terms of a settlement. It makes the settlement binding once signed.
There is still work to do after the parties sign the term sheet. The attorneys must work out the wording of the final settlement documents. Often, this is more difficult than expected. However, we generally can hammer out the final settlement documents. Then, excepting the cases of infants and decedents, the settlement funds are usually sent to us by the defendant or the defendant’s insurance carrier within 21 days of us sending the final agreed upon settlement documents to the defendant’s attorney.
What happens of the case doesn’t settle at the mediation ?
Not every case settles at a mediation. The parties may be too far apart, the defendant’s carrier has not seriously evaluated the case, or the parties just don’t see the case in the same way. If so, then we continue moving the case to trial. The mediation briefs, the settlement demands and offers, the statements at the mediations, are all confidential and cannot be used at trial.
Sometimes, even if a mediation doesn’t succeed on the first session, it may lead to further sessions and a successful settlement. We have had cases where the parties have gone through four mediation sessions before settling a case. Every session moved the case closer to that settlement.
Mediation as one way to help our personal injury clients
There is no one way to get maximum recovery for our personal injury clients. Mediation is just one of them. Jury trial, arbitration, and direct settlement talks are others. In the right case, mediation can work. If you have questions please contact us at 518-489-1098 or at [email protected].