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Injury Case Mediation Advice

4/28/2009

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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.

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Law Office of Arkady Itkin - San Francisco & Sacramento Injury and Employment Lawyer
We represent employees and employers in employment and wrongful termination cases, as well as victims of serious injuries in San Francisco, Oakland, Sacramento, San Jose, Palo Alto, San Mateo and throughout Northern California. We all represent businesses and start-ups in a wide range of business and employment issues and disputes. 


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  • Home
  • Employment Law
    • Wrongful Termination >
      • At-Will Employment
      • Termination After Unfair Warnings and Write-Ups
      • Union Grievance, Workers Comp and Wrongful Termination
      • Labor Code 970 Claims
      • Promissory Estoppel and Employment Contracts
      • Implied Contract Claims
    • Discrimination >
      • Proving Discrimination
      • Age Discrimination
      • Disability Discrimination >
        • Protected Disabilities
        • Medical Leave / Disability Accommodations
        • Job Reassignment As A Disability Accommodation
        • SSI Disability Benefits and Your Court Case
        • Sample Request for Reasonable Accommodation
      • Pregnancy Discrimination
      • Race Discrimination
      • Sample Discrimination Complaint
      • DFEH and EEOC Investigations
    • Retaliation >
      • How to Prove Retaliation
      • Dealing with Retaliation While Still Employed
      • Retaliation for Complaining
      • Whistleblower Retaliation
    • Harassment
    • Defamation at Workplace
    • Prof. License Defense
    • Leaves of Absence >
      • Medical Leave as Reasonable Accommodation
      • FMLA Entitlement and Reinstatement to Work
      • CFRA Leave
      • Employers' FMLA Notice Obligations
      • Paternity Leave (FMLA)
      • Sample FMLA Leave Request
    • Wages / Overtime Claims >
      • Wage Claims
      • Employee or Contractor
      • Exempt / Non-Exempt >
        • Admistrative Exemption
        • IT Support Specialists Compensation
        • Computer Professional Exemption from Overtime
        • Recruiters / Account Executives Exemption
        • Complaining About Being Misclassified
      • Vacation Pay / PTO
      • On-Call Time Compensation
      • Deductions fr. Commissions
    • Unempl. Benefits Appeals >
      • Tips for EDD Phone Interview
      • Unemployment Benefits Appeal Hearing Representation
      • CUIAB Hearing Tips
    • Employment Law Blog
    • For Employers
  • Personal Injury
    • Five Tips For Injury Cases
    • Slip-and-Fall Injuries
    • Assault and Battery
    • Recorded Statements
    • Repairing Your Vehicle
    • Unpaid Medical Bills
    • Injury Law Blog
    • Medical Malpractice
    • Police Excessive Force
  • Practice Areas
  • About
  • Results
  • Submit Case
  • Contact
  • Resources
    • Consultations
    • Workplace Rights Checklist
    • Deposition Tips
    • Mediation Tips
    • Effective Mediator
    • Suing Current Employer
    • Severance Agreements
    • Workplace Investigation
    • Arbitration
    • Statutes of Limitations
    • Healthy Litigation Mindset
    • Trial Tips
    • Working Remotely
    • How To Find The Right Lawyer For Your Case