PERSONAL INJURY MEDIATION
Taking Advantage of Court-ordered Mediation
Whether to use the Court mediator or hire a private mediator
The Effect of the Claims Process on Mediation
In many companies, as soon as a Complaint is received the file goes to a claims supervisor or manager, often in the home office or other central location, who handles litigation files. This person selects counsel to represent the insured, reviews and independently evaluates the claim, and forwards the claim file to counsel along with the Complaint to answer, and hopefully contact info for the insured. From Plaintiff’s perspective this means another pair of eyes to review the file and another chance to convince someone of the claim’s merit. However, just like field claims people, the claim supervisor or litigation specialistis not free to pay what he or she wants, but must document everything. He or she also has people to report to in the hierarchy and has to justify his or her actions to them.
The role of Defense Counsel
What Plaintiff’s attorneys should consider is that this entire process is not personal, all of these people are just doing their jobs, everyone has someone to answer to. The best way for personal injury attorneys to settle cases for full value is to try to assist this process by providing information. Remember, they have something you want: money. You, in turn, have what they need: information. If they get the information and if it bears out the Plaintiff’s case, they will generally settle. If the relationship has not been as smooth as silk, the order from the Court to mediate could be an opportunity to get a fresh start.
So what is the case worth?
The value of Mediation
Another side of the equation is expense. Case expenses come out of what your client gets after the dust settles, so the expenses should be evaluated with the client and from the client’s perspective. Considering the risk of a low verdict and the expense of trial and looking at the case honestly as an evaluator, often the best result for the client can be achieved through mediation.
So, how to take advantage of the court ordered mediation?
The medical and other expenses also need to be fully obtained and analyzed to have the best chance of a good recovery at mediation. In Ohio, if there are Robinson v. Bates issues, the numbers should be calculated ahead of time. It is a sound practice to share the analysis of medicals with the opposing attorney and agree on the numbers before the mediation. This saves time and confusion at mediation and is rewarded with trust from the other side. The more credibility Plaintiff’s counsel brings into the mediation, the better the results tend to be.
Demands sent out before a mediation should be well in advance and should be well-thought-out in amount. A demand sent the Friday before a Monday mediation is not likely to be well received and may best be held until the mediation and discussed with the mediator.
One reason is that claims department policy often requires claims professionals to set reserves early and not to “stair step” reserves. A claims person may feel that the practice of sending out high demands the Friday before a mediation puts him or her in a bad light with the people he or she must answer to. This tends to throw cold water on the process. If the demands are going to be high, the sooner claims knows this, the better.
Demands that are too excessiveare also counter-productive. It doesn’t help to have opposing counsel walking in believing there is no real chance of settlement, which is the impression they have if the demand is excessive.
If you carefully analyze the case and figure out what you hope to settle for that has a reasonable chance of being paid, and that your client is prepared to accept, then a demand of 2-3 times that amount will put you in a better position to settle than 10X. Also, if the demand is high, expect opening offers to be low.
As you may have gathered, trust is essential in mediation. The Plaintiff and Defense teams, the mediator, and clients must establish a level of trust to get the job done. Understanding the role of the other side, being forthcoming and providing information and documentation make it easier to establish trust, and assure that when you do settle that the result will be the best for the clients.