Personal Injury Mediation Approaches
Most legal practitioners know that mediation is a great chance for them to display the client’s case in its best light, prior to a trial. So even before opposition to a Motion for Summary Judgment they can show off the case value. Typically, an insurance adjuster who is faced with paying a defense attorney, or paying your client will also be required to attend.
This is still the way they handle mediation in these kinds of cases. But they did not always handle major personal injury cases in this same manner in the past. And it seems to be going backwards. Incidentally, this is good news for hourly billing defense attorneys who enjoy billing.
More often today the plaintiff’s attorney is finding the decision maker in these major claims are absent during mediation. And this remains especially true with multiple insurance coverage involved. When this happens, the settlement discussion is delayed in mediation. It seems like multi-party cases end up with each defendant pointing at the other one.
This is a complication that is often used as an effective delay tactic. After all, the settlement negotiation cannot be authorized immediately. Hence, it will need to go through channels to be approved. So it will take time for this process since they are not in attendance at the mediation session. 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 lessen the damage when the decision makers are absent.
- They can find out who will be attending the mediation session. This is done by talking to the defense before visiting.
- Once it is known who will be attending the meeting, it can be determined who makes decisions for each level of coverage involved in the claim.
- If the important 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.
- Before the mediation consulting the qualified mediator is usually possible. So hopefully he or she will discuss issues regarding decision makers.
So don’t be a slacker. Pin these people down. In fact, even ask the judge to require the attendance of a decision maker with authority, or 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 insurers viewpoint about the claim. In a joint session the plaintiff’s lawyer is able to 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 claimant and their family, along with other pertinent information.
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 session is that it allows the plaintiff or the family to be seen and heard by the adjuster. This is the money person. This person can make a big difference in the case. The only way this will be effective, is when the plaintiff’s side is prepared. They must present a cogent argument.
Private mediation sessions are used by mediators in the main cases. So this is where they are able to listen to the plaintiff’s case and help in negotiating the claim for its true value. In the past using private sessions was to run numbers. This is not effective when the plaintiff has sustained major injuries or the family has suffered the loss of a loved one. They require time for the emotional impact. Also, people must be able to think rationally in the negotiation process.
So the mediator must negotiate through the plaintiff’s lawyer. Also, when dealing with the claimant, they must have a good listening skill, 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: There is a considerable amount of premeditation preparation that is done by the mediator. Reviewing briefs and discussing the facts with the attorneys prior to the mediation can provide the mediator with information. So that may be used in making the reconciliation process successful. During these discussions the mediator may determine the intervention would benefit with a joint or private mediation session. They will be informed of whether the plaintiff’s lawyer or defense made the last attempt in the negotiation. Or they will be told who should be the first in the mediation meeting. This can also help in determining the material issues. That way the plaintiff and defense can agree on issues that are hard to pin down. This can also show the personalities and who the decision makers are. Plus it stresses points that will need to be avoided for the mediation to be successful. The mediator can research discovery issues, jury verdicts, and coverage issues. So they will be alert to signals by the attorneys when a settlement agreement is near.
- Follow-up: When a claim is at a stalemate in a claim with serious injury it is not uncommon for it to end this way. Mediators have the experience to know this happens. And in some cases it is foreseeable and they are left with finding a way to move past this point. In the end, if the mediator is not able to procure a settlement, they are at ease with the session being concluded. Other avenues will be followed. These 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 to find out if they will be open for further negotiations. Maybe these will lead to an eventual settlement. This is often done by mediators at no extra charge in the mediation of personal injury cases. So for personal injury cases to be successful preparation and strategy on the part of the broker are paramount.
In any event, even if the mediation itself ends in a stalemate, it could still result in a “mediator’s proposal.” And you could still settle via fax machine. In our future discussions, 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.