I am proud to have successfully resolved a difficult truck collision case Friday at a mediation for a substantial amount. I wanted to thank Michael Carnahan for his excellent work.
You might not know what a mediation is or how it can help you if you have a dispute with an insurance company, so here is information that can help you understand this critical process.
What is mediation?
Mediation is a voluntary procedure where the parties to a lawsuit agree to hire a neutral third party, who is a retired judge or an experienced trial attorney, to help them resolve their impasse.
After a lawsuit is filed and the discovery of evidence has been made (and on rare occasions before suit is filed), the attorneys for the opposite parties can agree that it is time to see if they can reach an out of court settlement.
In the personal injury world, the injured persons, insurance company representatives, and their attorneys meet at a neutral site, usually the mediator’s office. He or she attempts find a number to compensate the plaintiffs for their damages that the parties believe is equitable.
The plaintiffs have already or will make an initial demand, either in a written demand or a joint meeting (rarely used now). All sides will have provided the mediator with their position papers, with key exhibits and briefing of relevant cases, weeks prior to the mediation date.
Usually the plaintiffs and defendants are far apart on what they estimate the case is worth after a jury reaches its verdict. And of course no one knows what that number will be in advance. I analyze 62 variables to help evaluate how much a jury might award in damages.
What happens at a mediation?
The mediator will then meet with the insurance company and/or business representatives to sound them out on their defenses and obtain their first offer of compensation. He will then go back and forth between the different rooms and try to convince the two sides to lower or raise their demand and offer so that an agreement can be reached.
The mediator does not take positions and has no decision making authority. However many sessions that remain at loggerheads after hours of discussion are successfully finalized by the mediator’s final “take it or leave it” proposal.
Thorny issues, including the satisfaction of government and health insurance subrogation liens, payment of outstanding medical bills, structured settlements, payment schedules, reimbursement of expenses, and confidentiality are also hashed out.
If the parties are truly interested in working together, the numbers and issues get closer and closer as the mediator works privately with all sides and carries demands and offers back and forth. The session lasts at least four hours but usually takes all day or longer.
No testimony is taken and recorded by a court reporter, the session is closed to the public, and everything that is said is confidential and cannot be repeated at the trial, so the mediation encourages candor that is not achieved in the formal courtroom setting.
Pros and cons of mediation
- The case may settle. Maybe the insurance company and corporate decision makers have not taken the time to consider the evidence, meet with their attorneys, and analyze the risk of an adverse verdict. In the case on Friday, the insurance company had not yet made an offer.
- The plaintiff can help control the process. You and your attorney make the decisions, not a judge or a jury, which can be unpredictable. You can find the mediator and reject the defense’s choice, if necessary. You can pick an agreeable date, time, and location.
- There is much less stress. You are likely to feel less anxious when being guided by a mediator than in the formal setting of a courtroom. Your attorney will have plenty of time to counsel you and explain what is going on in the other room.
- The injured person can learn about the weaknesses in his case. The plaintiff has the chance to find out how the defense has analyzed his case so that if it does not settle, he and his lawyer can try to rebut and minimize weak areas at trial.
- Some cases will never settle out of court. The process can be a waste of time, depending on the facts, demand, offer, parties, and attorneys involved.
- The mediator’s fee. However that is a small price to pay to obtain these positive benefits.
If cooler heads prevail, the parties can often reach an agreement. The reality of going to trial is sometimes enough to get the insurance company and company representatives to cooperate.
Formulate a winning mediation strategy
Texas law requires all cases go to mediation before trial. Approximately 99 percent of personal injury claims are settled outside of a courtroom.
Do you need an attorney to represent you in mediation? It’s not required but it’s a good idea. The insurance defense attorney on the other side of the table goes to court in car accident cases for a living. He has developed techniques and strategies to reduce the amount his company pays to you. On your own, you won’t begin to get the maximum possible damages. You need an experienced auto accident lawyer to be on equal footing.
I prepare for mediation as though I am taking the case to trial. I collect the crucial evidence needed to back up your damages claims and prepare a comprehensive mediation strategy tailored to my clients’ case. I meet with them to prepare them for the grueling day, review all aspects of their case, play “devil’s advocate” to get them ready, and propose A, B, and C goals of best case, good, and minimal amounts of money they will accept. We itemize all medical bills, lost wages, and other damages we want to recoup.
Contact Berenson Injury Law
I have extensive experience representing injured Texans in mediations over the past 37 years. If you have been injured in an automobile or truck accident, please contact me here.