Mediating a Personal Injury Case: What you need to Know

Cases can settle in a lot of different ways.

They can settle minutes before trial in a Courtroom.

They can settle by email late at night.

They can settle a day after a long mediation which failed because a party had a change of heart.

There’s no predetermined formula as to how cases settle outside of Court. Personal injury lawyers, and defence lawyers have many tools at their disposal to achieving a settlement, if that’s the desired result for their client.

One of the most effective, and most widely accepted tools is mediation.

Mediation is a party centred method of dispute resolution which takes place in a less formal environment than a traditional courtroom. It’s basically a really fancy legal word for a meeting with all of the decision makers to focus on getting the case settled. What’s nice about mediation is that during the mediation, all of the lawyers and adjusters are focusing (or are supposed to be focusing!) on that one particular file. That’s a very good thing considering this singular focus on one specific case for an extended period of time doesn’t happen all too often for lawyers. They often jump from case, to case, to case throughout the course of a day.

There are lots of other benefits to mediation which I won’t go into too much detail about, but here are a few for quick reference:

It’s less expensive than going to trial
It’s faster than going to trial. You can get a mediation date much faster than you can secure trial dates.
Completing a mediation is faster than running a personal injury trial.
It’s private and confidential. Nothing said at mediation can, or will be held against any of the parties. That means that the discussions and offers are without prejudice.
The result at mediation is instantaneous following the conclusion of mediation compared to completing a trial and waiting for the Judge’s reasons which may take weeks, or months, to be released.
The end result of mediation (settlement or failed mediation) cannot be appealed. A trial verdict can be appealed, which adds further cost and delay to the conclusion of the case.
All of the decision makers are in the room so that the parties get to decide their destiny. This provides the parties with a certainty of outcome, rather than leaving things to chance in the hands of a Judge or Jury

Here are a few things which Plaintiff in personal injury cases should know before going into mediation.

For the Plaintiff, this case is very personal. In fact, the case could not be any more personal because it’s all about you! But for the insurance company, this case is all about business. Your case does not carry any more, or less weight, than all of the other cases which the insurer handles. It’s simple another case and another day at the office for the insurance company. The faster which Plaintiffs understand that, the faster they will understand how insurers operate and approach these cases. Insurers make cold, calculated, business decisions whereby they perform extensive risk calculations based on a variety of factors you might not even understand. In fact, sometimes the lawyers on the case don’t even understand. The only answer which they can give is that this is their client’s new policy; or this was a directive from upper management without any rhyme or reason for the decision.
At the outset of mediation, the mediator will deliver an opening welcoming everyone to the mediation, laying some groundrules, explaining the advantages to mediation and explaing how the mediation process will work. Following the mediator’s opening, the lawyer for the Plaintiff begins with an opening setting out their theory and strengths of their case. This should not be very hard for a Plaintiff to listen to. But after the personal injury lawyer is done, the lawyer for the insurer has an opportunity to deliver an opening. This might be the most difficult 5-15 minutes of the day for the Plaintiff. Listening to an insurance defence lawyer criticizing you and your case isn’t easy; especially is you disagree with what that lawyer has to say. It’s even harder given that the openings are NOT conversations. All of the parties are expected to sit politely, and listen to what the lawyer has to say, uninterrupted. There will be an opportunity for rebuttal once the lawyer has concluded their remarks. But for that 5-15 minute opening can be excruciatingly painful and hard to listen to. But you have to find the strength to listen and get through it. That might be the hardest part of the day. It’s not supposed to be easy. If the insurer’s lawyer agreed with everything which your personal injury lawyer had to say, then the case would have settled long ago without the need for mediation, or litigation for that matter.
It’s important to read the mediation brief of the Defendant insurer. It sets forth their theory of the case so that you know where they are coming from; and for what reason they are approaching the case the way they are. Some insurer briefs are helpful. Others are not helpful at all. As a younger lawyer, I can recall mediation briefs from insurers which were only one page, and few boilerplate paragraphs. This was not helpful for the mediator, the personal injury lawyer, or the parties themselves. But, what does it matter if the Defendant is going to meet your number at mediation? The opposite is true because when your numbers aren’t met at mediation, you won’t be able to understand the rationale of their position. Simply disagreeing for no reason is not very insightful.
Don’t get frustrated. Lawyers may write one thing; yet do the complete opposite. They also may say one thing, yet do something different as well. It’s true! I’ve seen countless mediation briefs over the years and heard countless openings from defence lawyers which give the impression that the insurer won’t settle the case, or won’t pay a dime. But the case finds a way to settle and the insurer pays. The opposite is true as well. I’ve seen many lawyers deliver openings giving the impression that they want to settle or a pay a Plaintiff, but they make an monetary offer. And what can be even more frustrating is when a lawyer says something, and they actually stand by their words. Given all of the above, you don’t know what to expect. The only thing which you can control is yourself. Keep your cool and don’t get frustrated. You can only control the things which are within your control. Making decisions for an insurance company is outside of your realm of control so don’t get bent out of shape if things don’t appear to be going your way. Have confidence that things will work themselves out in the end.