What is Mediation?
Mediation is a process where each side of a case agrees to use a neutral third party to try to resolve the claim without going to trial. It’s important to know how personal injury mediation works. Mediation can be voluntary between two parties, but most often mediation is mandatory before a judge will allow your case to go to trial.
If your case is sent to mediation, then your attorney and the insurance defense attorney will try to agree on who to use as the mediator. The mediator is the neutral third party. Both parties agree on a date, time, location, and mediator.
Is Mediation a Required Step in a Personal Injury Case?
Sometimes the court orders mediation and other times it is voluntarily agreed to by both parties. Mediation can be a wonderful tool to resolve claims without the risk, expense, and energy required to prosecute or defend a lawsuit in a trial. However, don’t get your hopes up. Most of the time, insurance companies use mediation as a tool to discourage injured victims from seeking full justice for their losses.
Video About How Personal Injury Mediation Works:
What I do Before Personal Injury Mediation:
As an experienced personal injury trial lawyer, I meet with my clients for at least one hour before mediation to explain how personal injury mediation works. We go over specific facts and issues regarding their case. If the case is complex, our meeting before mediation may be a few hours long.
I ask my client to watch my video, featured above, that explains step-by-step what to expect in their mediation. After my client is fully prepared, then we go to the mediation together.
First, the Mediator Introduces Everyone Attending the Personal Injury Mediation:
Upon arrival, the mediator introduces themselves to all of the parties. They also ensure everyone knows each other and their roles in the case. Usually the defense attorney and a claims adjuster attend the mediation. More often than not, the at-fault party, or the defendant, may not come to the mediation. But, sometimes they are required to attend or other times they just want to attend mediation.
When People Don’t Want to Identify Themselves at Mediation, it Usually Means there’s Umbrella or Excess Coverage:
I have attended a few mediations where some people did not want to identify themselves or the parties they represented. This usually happens when there is an umbrella insurance policy above and beyond the defendant’s basic or first level of insurance. If there’s an excess or umbrella insurance policy they want to attend mediation for a few reasons:
First, they want to hear first-hand what the case is about. They want to meet and see the injured person and their lawyer. This helps them estimate what they think a jury will do. The umbrella insurance company wants to put pressure on the lower insurance policy to pay their policy limits and get a full release.
Why Does an Umbrella or Excess Policy Insurance Company want to Settle at Mediation?
If the umbrella Insurance company can put pressure on the first layer of insurance to settle with a release, then the umbrella insurance company does not have to pay at all. But, the umbrella insurance company doesn’t want the plaintiff to know about the extra insurance coverage. Because if the plaintiff finds out there’s excess coverage, they may not be willing to settle for the policy limits and may demand some of the umbrella money as well.
Before Mediation Begins, Everyone Signs Confidentiality Agreements:
After everyone has been introduced, the mediator passes around a document everyone signs agreeing to keep negotiations at the mediation confidential. This means that each party can agree or admit things they otherwise wouldn’t at a trial. Since mediation is confidential, both parties can relax. This is how personal injury mediation works.
Why is Confidentiality Important in Personal Injury Mediation?
Nobody worries about saying something the other side could use against them at trial. For example, the defense may say they are not contesting fault at mediation (which means admitting full liability for mediation only) but could fight fault at trial. Or, the defense may offer a settlement figure. If the case doesn’t settle, neither side can tell a judge or jury about one side’s willingness to settle.
Next, the Plaintiff gives an Opening Statement about the Value of their Personal Injury Case:
Once everyone signs the confidentiality agreement, the plaintiff’s lawyer makes their opening statement. Sometimes the opening statements are two minutes long. Other times they are a few hours long.
It depends on what exhibits, records, videos, photographs, or charts the plaintiff lawyer chooses to present. The opening statement helps the mediator, insurance adjusters, and lawyers understand what a jury may see if it doesn’t settle.
Then, the Defense gives an Opening Statement about Why they Should Pay Less:
After the plaintiff lawyer makes their opening statement, the mediator allows the defense attorney to present their side of the case. Typically the defense lawyer addresses my clients directly and says something like, “This is my only opportunity to speak to you. I have a job to do and I’m going to say things you won’t like; however, you need to listen to what I’m about to say because if we aren’t able to resolve this case today, you will be facing a jury who will hear the same information and potentially rule against you.”
The defense attorney will go through their list of why they offered low settlement amounts. They will try to put their case in the best light possible while putting your case in the worst light possible. Sometimes they will be aggressive, hostile, and rather nasty. Other times, the defense lawyer will be nice, thoughtful, and understanding.
Remember, the Defense Lawyers have an Agenda at Personal Injury Mediation
Many aggressive attorneys act this way to scare and intimidate the plaintiff, or the plaintiff’s lawyer. Sometimes the lawyers are nice and very professional. They will try to act like your friend. Every defense lawyer has an agenda. Sometimes they test the plaintiff to see if they can rattle your cage.
My advice to clients is to listen carefully to what the defense lawyer says, but not to react or respond to anything they say. Just let the lawyer say his part without giving them any reaction at all. They know how personal injury mediation works and want to take advantage of you.
After Opening Statements, Both Parties Separate for the Rest of Mediation
After the defense’s opening statement, the mediator breaks the parties into two separate rooms. The mediator will go back and forth between the two rooms carrying information from one side to another. The mediator will talk with you and your lawyer. They will ask questions and try to learn more about the case so they might be able to help persuade the other side to pay you more money. At the same time, the mediator’s job is to share with you some weaknesses they see in your case as well.
What Should you Tell the Mediator about Your Personal Injury Case?
It is important to know that when you and your attorney speak with the mediator without the defense, what you tell the mediator is confidential. In other words, you can tell the mediator information that is only intended for the mediator to know. So they are not allowed to tell the defense side what you told them if it was only for the mediator’s ears.
Also, the defense may be telling the mediator something in confidence that they will not be allowed tell you. Why would you tell a mediator something you don’t want the defense to know? Maybe you have some problem with your case the defense does not know about. Then you want the mediator to know you are highly motivated to settle your case without letting the defense know. If the defense knew you wanted to settle at mediation, they would never offer you fair value for your case.
How do you Know if the Mediator Conducting the Mediation is a Good One?
A good mediator addresses the weaknesses of each side and suggests making compromises. They explain to the plaintiff why they should lower their demand. Mediators also explain to the defense why they should raise their offer. A good mediator asks questions throughout the process to prompt each side to re-evaluate their position.
Sometimes the mediator will go back and forth many many times to exchange information each side wants the other side to know. The mediator will tell the defendant what the plaintiff’s demand is. Then the defendant will tell the mediator what the defense offer is. And the mediator will keep going back and forth encouraging each side to move towards a settlement.
During Mediation, Mediators will Remind Both Parties of the Risks they will Face at Trial
A good mediator keeps the parties talking and working towards a settlement. Mediators will also remind each side how risky a trial can be. They will remind everyone that you don’t know who will be on your jury. A good mediator will discuss how expensive the expert witnesses are to bring to court.
They will suggest that mediation gives the parties control over the outcome of the case, rather than putting your fate in six random juror’s hands. They will tell the defense that if they pay more today, they protect their insured from having to pay more than the policy limits if the jury awards more than the policy limits.
Finally, What Happens at the End of Personal Injury Mediation:
If or when we reach a settlement, the parties will sign a written agreement memorializing the terms of the settlement agreement. Then the attorneys prepare the necessary paperwork to file with the court to pay the claim. Next, the plaintiff’s client signs a release agreeing the case is over. That’s typically how personal injury mediation cases work when a settlement is reached.
What if a Settlement for my Person Injury Case is not reached at Mediation?
If a settlement is not obtained at mediation, sometimes negotiations continue and cases resolve closer to trial. Other times, the case goes all the way to a jury trial. At trial, cases can be settled during the trial or settled by the jury’s verdict.
Here’s the Deal, This is my Advice to Clients during Mediation:
During mediation, I always advise my clients to listen carefully and keep in mind how personal injury mediation works. You should keep a poker face and refrain from reacting to the defense lawyer’s comments. This includes making faces or expressing emotions while the defense lawyer is talking.
What Happens if you don’t keep a Poker Face during Mediation?
If you react during mediation, they may think you will take a low settlement offer. Or they may think you won’t make a good witness at trial. Keep in mind this is probably the first time the insurance company representative saw or met you.
They probably think you don’t understand how personal injury mediation works and try to scare you through the process. Their first impression goes a long way in their evaluation of your case.
How Should you Dress for Personal Injury Mediation?
Dress like you would for an interview or church. Wearing the appropriate clothing and holding back emotions may increase the amount they offer.
What Valuable Information will you Learn at Mediation?
Another thing I tell my clients during mediation is they will learn something in addition to how personal injury mediation works. As an experienced plaintiff’s lawyer who understands how personal injury mediation works, I find mediation an extremely valuable place to learn how the defense views the case. If the case is not settled at mediation, I leave having a better idea of what the defense will focus on at trial.
Why Choosing a Good Mediator Matters:
When selecting a mediator, I find experienced lawyers who have the types of cases I need to be mediated. Former trial lawyers and judges are excellent mediators. They have a good understanding of the issues presented during mediation. They also know the costs and risks associated with litigation. Most mediators in Florida are Florida Bar certified.
What is a Mediator Supposed to do During Mediation?
The mediator’s role during mediation is to help both sides focus on the issues and reach an agreement. Mediators try to reduce the negative feelings and minimize points of controversy between the parties.
Also, mediators remind both sides about the risks associated with juries and judges making decisions for the parties. Remember that mediators can’t give legal advice, and they don’t have the power decide anything for the parties.
That’s Not All: Insurance Companies Use Tricks at Mediation
Generally, mediators have a high success rate. In my experience, about half of the mediations result in a full or partial settlement of the case. However, I have experienced insurance companies using mediation to drive a wedge between lawyers and clients. Insurance companies use mediation as a tactic to discourage injured people from going to trial.
But Here’s the Catch: Low Offers are Used to Scare You
The insurance companies know that most plaintiff lawyers tell their clients that mediation will be great. Plaintiff lawyers often think they know how personal injury mediation works and say things like: “Your case will settle at mediation,” “The Insurance Company will offer you fair money,” etc. But then the insurance company makes ridiculously low offers. This has the effect of scaring some lawyers who are afraid of trial.
Scared, unprepared lawyers start telling their client, “I’m sorry, but you should take the low offer because X, Y, and Z.” Many insurance companies have intimidated injured clients’ lawyers into low settlements because they are afraid of trial. Or, at the very least, the client begins to worry that their own lawyer’s advice is bad. Since before mediation, they seemed so positive the case would settle. Then their lawyer got scared and started telling the client to take the low offer.
Be Prepared for Low Offers from the Insurance Companies during Personal Injury Mediation
So, be prepared to have low offers given to you. Remember, it’s just a test by the insurance company to see if you will take it. Don’t settle your case for less than its fair value. When the insurance company doesn’t make a reasonable offer, clients starts doubting their plaintiff lawyer’s skill.
This is a cheap trick insurance companies use to create friction between an attorney and their client. Insurance companies don’t use this tactic on aggressive trial lawyers. Lawyers that fight all the way to trial have the skill, experience, and resources to go all the way to trial. To learn more about insurance company tactics, read my article about insurance companies’ secrets
Beware of Lawyers who aren’t Prepared to go to Trial
Lawyers who may not be prepared to go to trial will usually, and unfortunately, cave. They give-in from the pressure and settle for less than it’s worth by taking the low offers.
I am glad to report, in my experience, mediation is a useful tool that has helped bring about many great settlements. Many of those cases I never thought would get resolved. If you need more information about how to choose a good personal injury lawyer, click here to read a guide.
The Bottom Line about How Personal Injury Mediation Works:
Even if an agreement is not reached, mediation teaches me what the defense will focus on at trial. The bottom line is this, mediation has very little downside. The worst that can happen is you don’t settle your case, but you will learn how personal injury mediation works and much more.
If you have any more questions about how personal injury mediation works, please feel free to call me. My name is Matt Powell1-844-MATTLAW. I would be glad to help you learn more about how personal injury mediation works.