Settling Your Personal Injury Case at Mediation

Mediation proceedings become progressively more popular among lawyers as they provide a relatively quick and normally inexpensive way of settling a case. Many courts refer filed cases to mediation or some other form of alternative dispute resolution (such as arbitration) and urge parties to settle their cases as early as possible. 

As a client, as a person who has been injured and who has been suffering through pain and prolonged treatment, it's crucial that you do not make the same three mistakes that many other claimants make that prevent them from settling their case at a mediation: 

1. Having unrealistic expectations about the value of your case. Most claimants base their view of what their injury case is worth on either movies or verdicts that they hear about from the media, or from friends who had "similar" cases. The media is very selective about the legal news they report. Like with all the other news, unless the case or a verdict has some kind of shocking value, why would it be wide publicized? A million dollar verdict might be reported on any given day, while dozens or even hundreds of very small verdicts or even defense verdicts where the injured person loses and doesn't get a penny are hardly ever mentioned. Moreover, the big injury cases are covered in a very incomplete and skewed way. Everyone has heard about the McDonald's hot coffee burn case, but very few people know the facts that made the jury award that large verdict in that case. It was hardly mentioned that McDonald's was warned many times not to overheat their coffee, that there was evidence that the company did it intentionally in order to maximize the amount of coffee made from the beans, and that the victim suffered serious burns. With regard to your friends or relatives who had a "similar" case, you simply have no way of knowing how similar their case is to yours. There are so many factors that come into play during litigation that virtually no two cases are identical. From insurance coverage issues, to prior history of injuries, proving liability, and the posture that the opposite side takes - these are just some of the factors that determine how your case should be handled. Thus, it is important that your settlement expectations are based on information other than the one you hear from the news, movies, and friends. And your lawyer, assuming that he is competent and trustworthy, should be one source of this information to guide you through the complex system of personal injury law and determining the fair value of compensation that you should be receiving. 

2. Setting the bottom number in your mind below which you will not go, no matter what before you even go to mediation. Again, since you have no way of determining the fair settlement value of your case, you should not be setting any advanced expectations. Mediation is about keeping and open mind. This is an opportunity for the parties to find compromise to their position. Compromise means that both sides are giving something to get something in return.  The insurance company or any other corporate defendants pays out sooner than they would later at trial in order to resolve the case, not incur expenses associated with actual trial, and not be exposed to the risk of being "hit" by the jury for more. The individual claimant agrees to accept lesser amount than he/she expected to get the money earlier and not wait for months or even longer till trial, to get certainty and not risk losing at trial or getting a smaller verdict after incurring trial related expenses (which is always a possibility) and in order to move on and close that part of his/her life. 

3. Taking mediation personally. Some claimants treat their mediation against an employer, an insurance company or any other corporate defendant as some kind of personal grudge. They forget that as personal as this case might be for them, it's anything but personal to the insurance company. It's just another business decision for that company, and you - the claimant -  should treat it as such. Most accidents are a result of negligence rather than intentional conduct. Therefore, you should not be angry at the driver who caused your injury. He likely did not do it on purpose. This means, that you should not be insulted or try to walk out at the beginning of the mediation, when the other side is offering a ridiculously low opening offer. They always do. This is just part of the game. Both sides begin the negotiations far apart hoping that by the end of the day (it's not unusual for a mediation to take a full day or even longer) and hope to reach and settlement agreement at the end of the proceedings. On few occasions that I and a few of my colleagues tried to shortcut the process and come out with our final offer right out of the gate, the mediation was a total failure, because we failed to take into account human nature. Everyone needs to feel that they accomplished something even if it's completely illusory. If the corporate defendant and its lawyers feel that they have done nothing for their business they will not be happy and will not be willing settle. So, the game of high/low has to be played at a mediation and there is simply no way around it. It's just part of the business. 

Avoid making the above mistakes, and your mediation is much more likely to result in a settlement.