Mediation-- it’s either a productive exercise or a deflating waste
of time for you and your client. Many personal injury cases are resolved
at mediation but only if your plaintiff’s lawyer is proactive. Here
are some tips to ensure the former and avoid the latter.
Make sure everyone is on the same page.
While we generally practice in DC, Maryland, or Virginia, this advice holds
true wherever you practice. Mediations are bound to be a waste of everyone’s
time if defense counsel isn’t at least in the same universe as you
on the value of the case. That doesn’t mean that there can’t
be substantial distance between the initial demand and the initial offer.
However, before committing to a mediation feel defense counsel out on
the value of the case. Strategies can include some sort of preliminary
bracketing regarding the value of the case or simple agreement that the
case is a low six figure, mid six figure, or low seven figure case.
Don’t expect miracles from the mediator. Insurance adjusters come
to mediations with a certain amount of money. They are doing all that
they can to not offer it all. Seldom at the initial mediation will the
mediator convince them to extend themselves much beyond their evaluation
of the value of the case.
Pick the correct mediator.
Any mediator that says, “I am not here to help you value the case
but to facilitate” should be avoided at all costs. If you needed
a messenger pigeon, it would be a lot cheaper to have paralegals shuttling
offers back and forth. You are paying a mediator for their expertise.
They spend a ton of time at the beginning of the mediation explaining
to your client why they are experts, make them earn their money. Find
out their opinion of the strengths and weaknesses of your case. Do not
be afraid to inquire as to what they believe the value of the case is.
You don’t have to agree with them.
Do your due diligence ahead of time. Any mediator suggested by the defense
should be vetted with other plaintiff’s attorneys. Just because
a defense attorney likes a certain mediator doesn’t mean that they
are bad. Sometimes they can get you more money because they have the respect
of defense counsel.
The client should not walk into the mediation assuming that the case will
settle. Make sure that your client is on the same page with you from the
beginning regarding the value of the case. If the client is not, engage
the mediator to assist you with the client. Even if the client is not
on the same page as you when you walk into the mediation, the lengthy
process of a mediation can often open a client’s eyes.
Get a decision maker.
Your client is a decision-maker. Make sure that the insurance adjuster
on the other side appears live at the mediation and has the authority
that they need. It is awfully easy for some adjuster in Topeka to refuse
to increase the offer when they aren’t sitting in front of the mediator.
Don’t be afraid to walk away.
If you find the insurance adjuster seems ill-informed or ill-prepared,
you probably should be walking out of the mediation. The odds are very
strong that they have undervalued your case. Some negotiation is fine,
but if you settle you are probably not obtaining the full value of the claim.
Similarly, not all mediations should be successful. Especially with larger
cases, it should be expected that there is some distance in the value
that you assign to the case and that the insurance company assigns to
the case. If they aren’t bridging the gap, you need to walk away.
Trust your valuation of the case. Some cases simply need to be tried or
at least be the subject of a second mediation.
Mediation is a wonderful way to resolve differences in value between parties.
Picking the right mediator and using proper strategy will help to insure
that you maximize the value of your cases and don’t sell your clients short.