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Personal Injury and Disaster Recovery Claims

What Is Mediation

When liability cases do not settle through negotiations, mediation represents a useful tool for further exploring settlement short of resorting to the risks, uncertainty and expenses (in time and money) of full-blown litigation. During the process, key parties (legal counsel, adjustors, injured parties, policy holders) meet in the mediators’ office (or the office of either counsel). Parties present their best cases, arguments, documents, experts, and evidence to  reach a settlement. If the case settles, the parties draft a written agreement that they execute, which outlines the terms of the settlement.  Depending upon the case a proposed consent order is signed and tendered to the court for its approval of the settlement. If the case does not settle through mediation, litigation resumes/commences.

When Does Mediation Occur

Mediation can occur at any time after a claim is raised (even before formal suit is filed and served) and prior to the trial date. However, usually it happens after the plaintiff files suit and both sides have had an opportunity to investigate the case, conduct discovery and research legal issues. If mediation occurs too early in a case, the parties may not be ready to mediate. The process may suffer from more opinion and emotions and less evaluation and analysis grounded in the facts and  realities of the strengths and weaknesses of the case. If mediation occurs too late in the case, for example on the eve of trial, so many expenses may have been incurred that the economics of settlement figures may not work. Parties and their counsel could be fully entrenched in their cases and not willing to budge.

 How Does The Mediation Process Work

Mediation is usually held at the mediator’s office or at the office of either counsel. The mediation is generally scheduled for a full day however some mediations can take as little as two hours and other mediations may require additional mediation meetings. The mediator serves as a  neutral or facilitator who is unbiased and generally does not give a substantive opinion on the case. In terms of process, the mediator makes a general statement of his or her background and ground rules, and explains the process and how it will work. The Mediator invites the parties and/or their counsel to make opening statements. After opening statements are made and preliminary questions are discussed, the parties and counsel may separate into different rooms and negotiations take place typically utilizing the caucus method. Caucusing is when the mediator goes from room to room to discuss strengths and weaknesses of the case, nuances, questions, and concerns – bridging the gap.  During this process, the mediator facilitates a process which encourages the parties to attach a dollar figure to their case for an offer or demand. The mediator relays those figures as well as questions, concerns and prospective back and forth to facilitate closing the gap in positions. What is discussed in a caucus meeting is confidential unless a party agrees that information can be shared. This allows for an open and candid exchange of information between a party and the mediator.  If the mediation is successful, the parties will close the gap in positions and agree to a settlement that will be reduced to writing in a settlement agreement.   Some cases may require the court to approve the settlement, for example cases involving a child under 18 years of age.

 Benefits of Using Mediation

 If you are a party to the action:

  • Empowers you rather than a judge or jury to decide the outcome of your case. The judge and jury does not know you or your case and they will not have to live with the outcome. Mediation is a way for you to determine the outcome.
  • In instances of working with an adjustor, mediation allows you to personalize the claim because you putt a human face (yours) on  the claim that is otherwise just a file on someone’s desk, arguably making it more likely that you will be offered a reasonable settlement when you are sitting across a table from the person making the offer than if you remain merely a set of claim documents and a voice on the phone.
  • Mediator — encourages both parties to break the deadlock.
  • Mediation can be much faster, easier, and less expensive than the cost of taking a case to trial.

If you are a lawyer or adjustor:

  • Cases can get resolved quicker.
  • The insurance carrier’s reserves can be closed.
  • Both sides can save the expense of expert witnesses, readying a case for trial and the possible costs associated with an appeal.
  • Avoids the risk of taking a case to trial and limits potential exposure.

How to determine whether to Mediate your claim

  • Plaintiff/claimant and the insurance adjuster are stalemated in settlement negotiations
  • The Parties want to attempt to settle the case but there is a lack of trust preventing open and candid negotiations.
  • The major sticking point is the extent of the injuries and/or what degree a party is at fault. There does not seem to be any negotiation moves left for you to make, short of preparing going to trial.
  • You want to move the case toward settlement and not be delayed waiting for trial.
  • You want to avoid the risks of going to trial.