Law Office of Arkady Itkin 

Mediation is an attempt by the parties to a civil litigation to resolve their case at an informal meeting with the assistance of a neutral, third party - a mediator. To put it simply, mediation is a process where the opposing parties meet and try to settle the case. At the beginning of the process, the parties are usually far apart in their expectation of what the injury case should settle for and hopefully with time, patience and negotiations, which may continue all day, the parties eventually meet at a dollar value which constitutes settlement. 

Like many other things, mediation is what you make of it. The role of your attorney and the mediator is to advise you on the strengths and the weaknesses of your injury claims, while the decision on whether to settle or not, and for how much, is ultimately yours. Therefore, in order to make the most out of the mediation hearing, you must have the right mindset and avoid the following, very common mistakes that plaintiffs make in injury accident cases and other claims:

1. Have an open mind about the mediation process.  One of the biggest mistakes that claimants make is going into a room with a set $ figure in mind, below which they promised to themselves that they won't settle. This is not a good approach for several reasons. First, it's a challenge for even the most experienced lawyers to put a dollar value on the case, so you can't possibly be in a good position to know what your case is worth, considering the inherent uncertainty of the litigation process and the outcome of trials. You have been hurt and you rightfully feel that you deserve to be compensated, but the settlement figure you have set in mind is probably at least in some way arbitrary. So, keep an open mind about the settlement value of the case.

2. Mediation is a Give-and-Take. Don't expect to get everything you want out of the mediation hearing. Effective mediation process requires flexibility and requires giving. When the parties reach settlement at the mediation, both are usually unhappy. The injured feels that he was shortchanged, while the insurance company feels that it might have paid too much and set a bad precedent. Mediation is a compromise of parties' position, requiring both parties to move from their existing positions closer to each other in order, at the end of the day - to find a common ground and make the case resolve.

3. Evidence v. Perception. There is a big difference between what you can prove and what you actually feel. Much of the pain from your injuries might be subjective, that is - you can feel it, but no one can see it (no x-ray, MRI and other images can show the source or the cause of the pain). Ask yourself how far you are willing to push the argument that you are in great pain, if there is no solid, objective proof of that pain?  

4. Be Patient. Most likely, the insurance company will make an insultingly low settlement offer at the beginning of your mediation hearing. Be ready for it and don't take it personally. It's just part of the game. Your lawyer will likely advise you to take the opposite position and start negotiations on your side with an equally excessively high settlement figure. Be ready for a long day of going back and forth with settlement figures that are slowly crawling closer toward each other, as this is just a standard mediation process.

There comes a time in your injury case when you finally reach a settlement agreement of your claims and you have to calculate how the settlement money will be allocated between you, the medical providers/ lien holders and your attorney. 

It's important that you keep in mind that if you are represented by an attorney, the claim of your health insurance company and the medical bills of other medical providers who hold a lien against your case are highly negotiable and in most cases they substantially reduce their charges with one or two calls from your injury lawyer. 

Under the so-called common fund doctrine, the medical provider should generally reduce their charge by at least the percentage of your attorneys' fees. In other words, if your attorney represents you on a 35% contingency fee, the health care providers who treated you for your injuries should reduce their bills by 35% or more. 

Recently, I managed to negotiate a $14,000 bill from Kaiser insurance to under $5,000 because my client's injury settlement was relatively law. 

You should remember that the representative of the medical office or the health insurance company you are engaging in negotiations with has a significant degree of discretion in the discount that he will give you on your medical bills. Thus, it's really worth being courteous, and instead of demanding reduction in the medical charges, you should try to evoke sympathy and explain why reducing charges will be fair and necessary in light of your injuries, recovery and likely necessary future treatment, if in fact you believe you will need the same. 

An important rule to remember is that if Medi-Cal paid for any of your treatment related to your injury for which you recover a settlement, you and your attorney have an affirmative obligation to reimburse Medi-Cal for at least some of the medical costs they covered. Medi-Cal's lien can also be negotiated, and a useful phone number to have to discuss the lien reduction with medi-cal is (916) 650-0490 (personal injury recovery unit).

Dog attacks are a more common and a more devastating problem than most people realize. As with most trends, good or bad, California leads the nation in both the number of dog attacks and dog attack-related fatalities. 

In California, the primary statute for dealing with dog bit cases is civil Code section 3342 (the "Dog Bite Statute"). Under that section, the dog owners face strict liability when their dog bites a person "regardless of former viciousness of the dog or the owner's knowledge of such viciousness." A victim of the dog bite must who only that the dog bit him or her and caused injury requiring medical attention and care. One that is established, the defendant must pay for all the damages caused by hi or her dog.  The strict liability rule eliminates the need to prove fault and significantly simplifies the claim. 

California's courts have clearly held that section 3342 is not limited only to "bites" causing puncture wounds or other physical injury directly related to the dog having "bitten" the victim. Liability is found in cases where the dog "indirectly" injuries a person, by, for instance, pulling a person by his pants and off the ladder, even if the dog's teeth never touched that person's skin. 

It is important to note that Civil Code section 3342 only applies of the victim was in a public place or "lawfully in a private place" at the time of the attack. Because most dog attacks take place on the dog owner's property, trespassing is one of the favorite defenses of insurance attorneys. Thus, if you have been attacked by a dog, it might be critical to make sure that you obtain statements from any wi