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
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
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
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.
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.
after filing a suit
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.
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.
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.
Analyze change in
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
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
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.
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?
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
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.