Are Mediations a Good Thing?
The latest in job injury and in auto accident cases is to settle through the mechanism of a Mediation. Mediation, if handled properly, can be a good thing for all parties. A few good reasons to mediate is the parties obtain a much quicker resolution, the injured person can move on with their life quicker (hearings and trials can take between 6 months to 2 years in litigated cases) and the bad feelings that are part of the litigated cases genuinely hurt my clients emotionally and can be avoided in a settlement mediation.
But how you talk to your injured client about what mediation entails can make a difference in their attitude going into this process.
If you first tell your client “Mediation is about compromise, what is fair and what is reasonable,” watch out for their adverse reaction. Compromise can have the connotation of surrendering one’s rights, one’s position and clearly the money my client strongly believes they are due.
I have heard from many professional mediators that the lawyer who represents the injured worker or plaintiff merely throws up a number that is completely unrealistic with no basis in reality or the facts of the case. It is terribly important to show the client the value of their case and claim and why that is so. Clients will listen to their lawyer IF the lawyer has been following their case, been working to do everything to increase the value of the case. But the lawyer must also inform his client that there may be another way of looking at his case or at least looking at different expert’s opinions. In many cases, the insurance interests are always able to find their own expert who may have a vastly different view of my client’s injuries, how long it will take to recover and what kind of permanent impairment one will have and how quickly that person will be able to return to the work force. I have an obligation (and it is certainly wise) to review alternative opinions with my clients long before the mediation begins.
Mediators like to say, when they are meeting with me and my clients during the mediation, “don’t you want to control your own life again?” How appealing this sounds. And it is true but re-gaining control should not be a major compromise of one’s case value.
If we have a strong position going into the mediation, we have a better chance at a “reasonable” outcome. Again, my client may not want to be “reasonable” if it means continually lowering his/her demand. Most clients believe the insurance side is quite unreasonable with their initial offer or two. It tends to back them up against the wall, making them reluctant to engage in the back and forth that mediation always requires.
I believe that it is imperative we meet with our clients a week or so before the mediation date and discuss the entire process. The client must know they can walk away without a settlement of their claim. This gives them the power to push harder for their goal. And just as importantly, during that meeting with your client, discuss the bottom line that they will agree to settle at the end of the mediation. Sometimes, I am shocked at how much money the client feels they deserve when, especially in the workers’ compensation cases, there is no way I can get them that kind of money. Educate your client on the actual value, give them reasons for this value and you can have a much better opportunity at successful mediation.
When the mediator tells us that the insurance company lawyer is stopping the mediation because they have reached their maximum authority given to them by the insurance company, that lets your client know that you may have reached an “impasse.” Maybe my client and I should pack up and head home. Or we could reach out to the other side with one more “final offer.” This usually can get us $5,000 to $15,000 more if one can present a good argument for it.
One “minor” detail-as you and the insurance lawyer agree to mediate, make sure you state that the insurance company pays for the entire cost of the mediation. And get that statement in writing. Mediators charge about $1,000 or more for each of the parties to participate.
In summary, mediation can be productive but without advance preparation and a client understanding of what his/her case is really worth at a mediation, you could be wasting a lot of time. Prepare, prepare, prepare. It is your best weapon for a successful mediation.
It seems to me that an experienced mediator tries to build bridges between the warring parties. The issues at the beginning of a settlement negotiation are many and tend to force the parties into an “us versus them” mentally.
A recent article in the Fulton County Daily Report dated December 27, 2023, quotes author and mediator Ted Blum as saying “…breaking down barriers between people who seemingly have polar opposite intents and bring them together for a common win-win goal,” is what a mediator can do.
I tell my clients to be patient at the onset of mediation. The preparation I did, as their advocate, long before the day of mediation, will “wear the other side down” as the facts and time will tell. You cannot expect a good result without maximum preparation. If you cannot persuade the insurance company’s committee to pay the right amount weeks before the mediation date, it will not happen on the day of the mediation.