Prior to institution of litigation

Justification and return:

The sooner you can get your personal injury case settled for a "fair and sensible" amount, the better off both you and your client will be, and the more content your client will be.  Your client’s content may very well result in your getting more clients. Almost as importantly, the sooner an adjuster can get his/her file closed for a "fair and sensible" amount, the happier your client will be. The happier and more content your adjuster, the better chance you have of reasonable future settlements with either that same adjuster or another adjuster who may have heard of your willingness to settle rather than litigate. Moreover, each adjuster has a supervisor and cases with higher potential will always go to that supervisor for approval of settlements.  A good experience with our process will not be forgotten by either the adjuster or his/her supervisor.

Money is the overall objective in personal injury mediation, but in many cases, over many years, people have been able to genuinely achieve closure, leave traumatic occurrences behind them and go on with their lives.  This may be a bi-product of the personal injury settlement, but it is a most important aspect of not going down the road of a fully litigated case.

Pre-suit mediation is particularly effective where your client makes an especially good appearance and can communicate well how the injury has affected your client’s life. This allows the adjuster to see first hand the intangible, but very real plus to your side of the case. It also gives your client a substitute "day in court".  Even if the case is not resolved, you will have educated the adjuster, and probably his/her supervisor about the strengths of your case. 

Approaching the other side(s)

You can approach the adjuster directly regarding the option of compromise with pre-suit peacekeepers, or we can approach them for you. Often the latter may be preferable, especially where our company has served as mediators previously with the carrier and/or has set up a mediation program within that carrier's office.

Preparing your client:

This is a chance to have the undivided attention of the claims person. Be prepared to clearly and graphically present the strengths of your side.

Negotiation strategies

Leave yourself "room", but make your initial demand is around the upper ranges of what you reasonably would expect at trial. Unrealistic demands tend to turn off the claims person, and the mediation can be unsuccessful.  

Early Mediation after filing a suit

Justification and return:

         The advantages to early mediation are similar to those of mediation prior to litigation.           Additionally most courts order mediation before trial.   In addition, mediation of suits           already filed can function as "inexpensive discovery" for both sides and/or help both           sides focus on "necessary" discovery to facilitate earlier resolution at minimal cost.

Timing consideration

Many times completing crucial discovery is helpful, but not necessary. Keep in mind the "interests" of defense counsel. Evaluate what you think the other side will need to settle your case and provide them with all the necessary information.

Preparation tips

Prepare your client to speak appropriately but to convey his/her feelings about damages.   Prepare materials/documents to be presented at mediation early and provide them to defense counsel with a request to forward it on to the claims person in advance of the mediation. Inform your client of who will attend the mediation from the carrier with defense counsel and the role we, as the neutral mediator, will play. Let your client know the reasonable amount of money he/she can expect to receive if the matter goes to trial and the consequences of losing.

Follow-up Mediations/Continuations

Analyze change in position/conditions:

After mediations, if the case doesn't settle, don't forget to consider a continuation of the Mediation. Many times great ground can be covered through the mediation, without the case being settled.  However, continued negotiation with the adjuster, may end up bringing your matter back to mediation.

General Guidelines on Preparation, Presentation and Compromise

Preparation:

Consultation with your client:

Educate your client about mediation. Let them know how and about the negotiations that will be take place. Talk with them about what verdict ranges and/or settlement ranges to expect. Talk about how your client’s appearance, clothing, speaking style may effect the adjuster and or the defense counsel. Let your client know they are both looking at your client to see what kind of witness he/she will make if the matter proceeds to trial.  Your client will always be evaluated by the claims person and defense counsel.

Presentation:

Bring your exhibits and demonstrative evidence to the mediation. Mediation is a great time to let the claims person know what you have ready for trial. They can be impressed just as a jury can. Do not let the opportunity slip by to make an impression.

1.     Getting the other side(s) to listen:

If the adjuster or attorney is angry and put off by either your client or you, it is very difficult for them to listen and consider reasonable settlements. Therefore work with the issues and avoid personalities and any difficulties you may have experienced with either the adjuster or attorney.

2.   Your preparation:

Plan your mediation far ahead. Evaluate who is negotiating on the other side. Anticipate potential ranges of settlement. Give consideration to negotiating with an initial emphasis on strengths from your side, but be willing to move your position as negotiations progress.

3.   The goals of mediation:

      Discuss and analyze your goals with your client. Anticipate the potential the first      mediation could be frequently an "education process." Is the goal to settle soon,           or do     you and your client have the luxury of waiting?

4.   Timing:

Be alert to what kind of movement will inspire movement from the other side. Consider saving room for a final compromise. Plan your anticipated movement ahead, but remain flexible as the negotiations progress.

5.   Use of mediators:

The "message" you create for us in the private conference is the "message" that will be conveyed. We are hearing both sides and can give you input as to what to expect from the other side. Give us an idea of what might be suitable, as the mediation progresses. Watch out for expressions to us of “your bottom line" too soon - it could prompt a premature Impasse. Potentially offensive material is often better communicated through the mediator, rather than directly to the other side. You do not need to be totally "honest" at all times with the mediator, but if you are not, be sure we do not know.

If you settle get the Agreement in writing: The court rules require that the Agreement be reduced to writing.   Problems do arise if the Agreement is not reduced to writing.  After your case is dismissed, please provide us with a copy of the dismissal.

6.   Innovative solutions:

Although there is seldom anything more than money involved in a personal injury case, be alert to other potential areas of agreement/settlement. In some cases, even if the mediation does not resolve the case, you can agree to limit discovery and reconvene the mediation.