Mediation Advice for Personal Injury Plaintiffs

Mediation is a formal settlement conference that usually gives you the best chance to settle your personal injury lawsuit before trial.

This article will give you an overview of the mediation process and some advice on how to make the most of your mediation. Most plaintiffs are very nervous going into mediation — don’t be. There is no winner or loser at mediation. No issues affecting your lawsuit, aside from whether it settles, are decided at mediation. You will not have to “perform” at your mediation or answer questions as you would in an IME or at a deposition. Your sole purpose at the mediation is to have the final word on whether your case settles.

Before Mediation – Meet With Your Lawyer

Most lawyers will have a meeting with their clients prior to mediation to discuss what mediation entails and to get the authority to settle your case for a certain amount. It is important that your attorney know your “bottom line” settlement number. Occasionally, the attorney will have you sign a written authorization allowing him or her to accept any settlement offer at or above the amount you tell your attorney. This is to avoid any miscommunication about how much money you will settle for before negotiations begin at mediation.

When coming up with your settlement number, remember that attorney’s fees, costs, and medical liens will have to be deducted from this amount. Your attorney should be able to provide you with fairly accurate numbers for all of these things to help you make your decision. Of course, if you just had an expensive medical treatment a day or two before your meeting, your attorney probably doesn’t have that bill yet.

Mediation – Who Will Be There?

At a minimum, in any personal injury mediation, the people who will attend will be you, your lawyer, the defendant’s lawyer, a representative from the defendant’s insurance company (called an “adjuster”), and the mediator. You may be asking, why didn’t you list the defendant? Well, in most personal injury cases, the defendant doesn’t control how much money is offered to settle your case. The insurance company does. The defendant in the case may not even know of the scheduled mediation.

Mediation aims to get the people who hold the “final authority” to settle the case together. On the plaintiff’s side, that will always be you (yes, you, not your lawyer, hold the final authority to settle your case).

On the defense side, the defendant’s insurance company almost always holds the final authority to settle by virtue of language in the insurance policy. There are some exceptions, such as medical malpractice cases, where doctors do not grant some insurance companies the ability to settle without the doctor’s consent (due to the effect that malpractice settlements can have on their medical licenses – and the medical “database”). However, the insurer has complete control over settlement negotiations in most ordinary negligence cases, such as car accidents and slip-and-fall incidents.

The defendant has the right to attend the mediation, regardless of whether he or she holds the purse strings. It depends on the defendant’s personality, whether he or she will assist the mediation process or be an impediment. Basically, if the defendant wants the case to settle, he or she can help put pressure on his or her insurance company to offer enough money to settle the case. If he or she would instead not settle, he or she can be a disruptive force that makes mediation more difficult. Because you have no real control over whether the defendant shows up, there is no point worrying about it.

What is a Mediator?

A mediator is simply another lawyer who has no connection to either party in the lawsuit and no interest in the outcome of the lawsuit. The mediator must be agreed upon by both your attorney and opposing counsel (if the attorneys can’t agree on a mediator, the court will appoint one, which neither side generally wants).

Some lawyers are full-time mediators and no longer represent clients. Some still represent clients and can be either a plaintiff or defense attorney. Don’t worry if your mediator is also a defense attorney. He or she is not the defense attorney on your case, and he or she would not last long as a mediator if he or she showed bias towards the defense side. Some of the best mediators I have dealt with were also defense attorneys.

The role of the mediator is primarily to act as a buffer between the two parties during negotiations. Mediators are paid well. Some charge around $400/hour, and others charge even more. This bill is split between the parties, even if the case does not settle. However, attorneys are unlikely to use a mediator they can’t get cases settled with.

Mediation – The Place

Usually, the mediation will be held at the office of the mediator. Be sure you know where this is so you don’t get lost on mediation day. Write down the address and phone number of the mediator’s office somewhere safe so you can call the mediator and let them know if you do get lost. More and more mediations are being conducted via video conference with Zoom. So, now you can even attend the mediation from your house!

Mediation – Before it Starts

If you arrive at the mediation before your attorney, it is okay to say hello and shake hands with the people from the defense side. Do not discuss your case. Limit your small talk as much as possible.

Most mediators already have specific rooms assigned at the office, so the receptionist or the mediator will usually just walk you directly to the room. It’s OK to talk about the weather, but don’t talk about what you did the past weekend or discuss any other activities that may come back to haunt you. The mediator’s office should have drinks (water, soda, coffee, etc.) and snacks. Please don’t hesitate to ask for these while you wait.

Usually, about a week before, the mediator has received and reviewed a Mediation Statement from both sides. Your attorney will prepare this and should give you a copy. From the plaintiff’s side, this looks similar to the demand letter, with the additional information that has occurred since then. This paperwork is not exchanged between the parties and only goes to the mediator.

Mediation – The Joint Session

The “Joint Session” used to be commonplace, but it seems to rarely happen now. It depends on the type of case, the mediator, and the parties involved. After everyone arrives and is settled in, the mediation will start. The first step (sometimes) in a mediation is referred to as the “joint session” (or “joint caucus”). Everyone involved in the mediation will be in the same room, usually seated at a large table in a conference room. The plaintiff and plaintiff’s attorney will sit on one side of the table, and the defendant’s representatives will be on the other side. The mediator will generally sit at the head of the table.

If the parties do not agree on a joint session (it sometimes just makes both sides dig in even further), the mediation will go ahead and start with each party in separate rooms.

The mediator will open the mediation with some information about his or her background and qualifications and a description of the mediation process. The mediator will usually direct most of the introductory remarks to you, as it is likely that you are the only person in the room who has not heard a mediator’s opening speech dozens of times. Here are the key points the mediator will likely discuss in his or her opening statement:

Confidentiality

Everything said in the mediation is confidential and cannot be used in court. The defense attorney can’t cross-examine you at trial and ask, “Didn’t you say at mediation. . .” However, should you reveal a new treating doctor or another witness at mediation, the defense can certainly find these people afterward and get information from them. A good rule of thumb is that while statements themselves can’t be used against you, the information in those statements may.

Impartiality

The mediator does not take sides and will not give either side legal advice about their case.

The mediator’s job is not to determine a winner or loser but to facilitate communication between the two sides and help the two sides settle. The mediator may play devil’s advocate while alone with each side to help them see the other’s perspective. Different mediators have different schools of thought on this. At some point, the mediator may suggest a settlement number. In contrast, other mediators think they must act as a “true facilitator” and only communicate the different points of view between the parties and let them conclude on their own.

Risk factors

The purpose of mediation is to allow each side to explore the risk factors that affect their case entirely. This will be the only opportunity for each of the parties’ attorneys to point out the risks facing the other side directly to the opposing party. Cases settle because it takes the “risk” out of going to trial. This risk goes both ways – it puts the case in the plaintiff’s and the defendant’s hands instead of a judge and jury.

Compromise

For a case to settle, each side will have to compromise. You will not get everything you would get if you won at trial. The defendant does not expect you to walk out empty-handed, as you would if you lost at trial. Somewhere between your “best day at trial” and your “worst day at trial,” there hopefully lies a settlement figure both sides can live with.

The point of mediation is to see if both sides can agree on that number. One local OKC mediator we work with often says that “settling is mutual dissatisfaction.” If both sides are unhappy, the mediator did his or her job.

Closure

If you settle your case at mediation today, you will get your money generally within a couple of weeks to about a month. This usually depends on medical liens which need to be resolved. If you don’t settle your case at mediation, you could wait years before you get paid, assuming you win. The stress of the lawsuit will be over, and you can get on with your life.

Control

At mediation, you control the outcome of your case. At trial, the judge and jury will.

Jury trials are uncertain affairs under the best of circumstances. The same case tried before two different juries can have two different outcomes. This happens from time to time. For example, when a jury verdict is overturned on appeal and a case is re-tried before a different jury.

After the mediator finishes the opening statement, he or she will turn the floor over to the attorneys to give their statements, usually starting with the plaintiff’s attorney. Your attorney will summarize your case, highlighting the positives. If the case has already had negotiations, your attorney will also summarize those. If the defense had previously made the last move, it will now be your side to make an offer.

If negotiations have not occurred, your starting offer number will be much higher than what you are willing to settle for, allowing plenty of room for negotiation during the mediation. Don’t get your hopes up based on this opening offer. The defense will come with a really low initial offer.

Next, the defense attorney will summarize the case to the mediator and start with their initial offer.

Throughout the mediation, it may be helpful for you to have a pen and notepad ready to write anything that jumps out at you as false. You can discuss this later with your attorney. The mediation is starting at this point — there is plenty of time to figure out the facts later.

After each attorney has given their opening statement (and possibly a little rebuttal back and forth), you will move on to the next step of the mediation – settlement discussions.

Mediation – The Private Sessions

More and more mediations are skipping the joint session and going directly to the private sessions. The parties are placed in separate rooms, where they will remain for the duration of the mediation.

Most mediations tend to have two major phases. The first is arguing over the facts or value-driver’s in the case. The defense may state that the plaintiff had a prior wreck or surgery years ago or some issue (real or unfounded) with the medical bills.  This phase is lining up what both sides can agree on and what they disagree on. At some point, the mediation will go into the next phase and be about the dollar figures.

If your side made the first offer at mediation (usually the case), the mediator will meet with the defense side to get a counteroffer. While alone with your attorney, you can discuss anything you want about the defense counsel’s opening statement (assuming one was given) or what the mediator has said about your case from the defendant’s point of view. Your lawyer can then use this information when the time comes to make another settlement offer.

During the private sessions, the mediator will go back and forth between rooms, relaying settlement offers and other information between the parties. This process seems simple but will often last a very long time. Most of your time at mediation will be spent waiting for the defendant’s next settlement offer. They almost always take longer to come up with an offer than you and your attorney. This is partly due to insurance adjusters having to call their supervisors during the mediation and get authorization for specific offers. Their side is more of a committee making decisions, and there will often be internal disagreements about how to proceed. On your side, it’s just you and your attorney — and ordinarily, you two have worked out your “bottom line” settlement number before the mediation, and you leave the negotiating part to your lawyer to meet or exceed that number.

Bringing something to do during the breaks can help the time pass quickly. Bring a magazine, a book, a video game, something to occupy you for hours when you would otherwise be sitting around fidgeting. Also, if you are picky, bring your own snacks in case the mediator doesn’t have any you like. The same goes for drinks if you don’t like coffee, water, or soda. If you have to take something every few hours, bring your medications. If you are on a special diet, bring your lunch. While the mediator will order lunch at long mediations, it will usually be from a sandwich shop or a restaurant near the mediator’s office. You could be at the mediation all day and do not want fatigue, hunger, or anything else to be a significant factor in your decision-making process. They will be a factor, as fatigue is one of the reasons mediations work. Both sides get sick of going back and forth with numbers and want to cut to the chase eventually.

Mediation – The Defendant’s Initial Offer

Just as your attorney will make an opening offer much higher than what you are willing to settle for, the defendant will always make an opening offer far lower than the insurance company is willing to pay. Do not be insulted by the defendant’s opening offer. Many plaintiffs think they are wasting time at mediation when they hear the defendant’s opening offer. Expect a lowball offer. It may be $1,000.00 or $500.00, or some other low number no one in their right mind would accept. The defense knows you won’t take it. They are just saying that your first number is far too high. Don’t get upset, and don’t walk out, regardless of how low the first few offers may be. Give it time. Getting into “real world” numbers during a mediation usually takes at least an hour. Why? Maybe gamesmanship, or maybe it’s just habit. With some mediations, the “real” numbers aren’t thrown around until after lunchtime.

Mediation Gamesmanship

Negotiating a settlement has become a game for some attorneys. Many attorneys do not like this aspect of mediation, as it is an enormous waste of time and energy. However, everyone feels compelled to play because it adds predictability to the process. Mediation is generally just a process of “moving the middle.” I refer to the “middle ” number between the plaintiff’s and the defendant’s last settlement offer. So, if the plaintiff offers $300k and the defendant offers $100k, the middle is $200k. This middle moves each time counter-offers are made. If the next round of offers was: Plaintiff – $280k, Defendant – $110k, the middle just moved from $200k to $195k. Eventually, in a case that can settle, the numbers get close enough that the parties can agree to split the difference. In general, the key for the plaintiff is to keep the middle at or above what he or she wants to settle for. I say “in general” because each mediation tends to run differently. Occasionally, the mediation is running along smoothly, and then one side or the other suddenly draws a line in the sand. In contrast, others have a more predictable ebb and flow to settlement.

This explains why your attorney may open mediation demanding $300k even if your case is worth roughly $60k. Your attorney is just leaving the negotiating room. The early offers in a mediation say less about where the case will settle than the difference between the last two offers from each side. For example, if you moved down $20k, and in response, the defendant moved up $10k, the inference can be drawn that the defendant will keep moving up $10k for every $20k you come down. If that movement does not meet your settlement number, your next offer may come down by $15k to let the defendant know that you are willing to move down only $15k for every $10k they come up. This goes back and forth many times, often in smaller increments, until each side gets a feel for where the other is headed.

The main reason for the plaintiff starting “way too high” and the defendant starting “way too low” is to give each side enough room to move until they have determined where the other side wants to finish. At that point, if it looks like the numbers won’t meet, it becomes a battle of wills over who wants to settle more.

The problem with starting at a more reasonable number, say $75K for an initial offer on the $60k example above? The defense always starts at a low number, cutting any room for the plaintiff to settle at a reasonable number.

Mediation “Drop-Dead” Offers

Mediation often results in one side presenting a “drop-dead” or “final number” offer. The “drop-dead” offer means “take it or leave it.” The offering side will let the other know when the offer is a “drop-dead” offer. Making a drop-dead offer means you do not want to hear further counter-offers. Either they accept your number, or the mediation ends without a settlement (an “impasse”).

Realistically, people make counter-offers to drop dead offers if their counter is close to the drop-dead number. Whether the drop-dead offer is a “final” depends on the people making it.

Some adjusters mean “final offer,” while others mean “this is my final offer until I make the next one.”

Settlement Brackets

One tool in the mediator’s toolbox is to use brackets. This is common when both sides are too far apart or moving very slowly. If one side is at $900k and the other is at $25k, each moving in $500 or $1k increments, the mediation may take weeks. A mediator or one of the parties, can propose a bracket with their next offer. Using the 900/25 example, the defense may make a counter of “600/100.” This means that the defense agrees to come up to $100k if the Plaintiff agrees to come down to $600k. Again, there’s some nuance and guessing if the other side hints at a midpoint here. The plaintiff can either:

1. Agree to the bracket
2. Counter with another bracket
3. Decline the bracket, or
4. Decline and make another counteroffer.

Choice 4 is generally not a good idea; it simply makes another offer without one in return (negotiating against yourself).

Choices 1-3 depend on how far along in the mediation the parties are. Usually, the next step is to counter with another bracket with a higher midpoint number.

Mediator’s Proposal

If the mediation has crept to a crawl, and both sides appear to be digging in, but there’s still a chance the case could get settled, a mediator will oftentimes suggest using a “mediator’s proposal.”

The usual scenario:

The mediator notices that the chances of the case settling, at the rate it is going, appear to be going nowhere, so he or she asks both sides if they want a mediator’s proposal. If both sides agree, the mediator will give a recommended settlement number. This proposal might be immediate (as most mediators know where the case is going) or the next business day. Depending on the mediator and the case, the parties may have 3 to 5 business days to accept or decline the mediator’s proposal.

The important thing about a “mediator’s proposal” is that if one side agrees to the number, but the other side doesn’t, the acceptance is not disclosed.

Mediator proposals seem to work pretty well in getting cases settled. I assume it’s because the mediator is in the best position to know what either side is willing to accept to settle the case. Still, another factor is that since the number comes from a disinterested 3rd party, it may carry more weight because the number is a fair resolution to the case. It also comes at the end of the mediation, so the parties know that if they can’t get it settled, the case will likely go to trial.

Successful Mediation – Settlement

If you successfully settle your case at mediation, the mediator will prepare a settlement agreement for all parties to sign. You will get a copy to keep with you. The settlement agreement will usually include that you agree to sign a full and final release. I don’t know why, but defense attorneys rarely bring this to a mediation.  Once it is sent over, your attorney will review and approve the documents before you read through them and sign them. Congratulations! Your case is now over, and you will soon be paid.

Unsuccessful Mediation – Impasse

If your mediation results in an impasse, your lawsuit will continue as if the mediation never occurred. However, all hope for settlement is not lost. It is common for cases to settle after a failed mediation (some within days, but some immediately before trial). Both sides tend to want to revisit settlement possibilities when trial approaches. However, do not take mediation lightly because you expect the case to settle soon. Mediation is usually your best chance to settle, as this is the only time before trial that all parties are present.