Every personal injury case and every plaintiff are different. However, there are five main areas of mediation that every plaintiff should understand before proceeding.
Why the Case is Being Mediated
Mediation has become so common that it is often a routine aspect of litigation, but it is an increasingly important part of the process. The purposes of mediation are for both parties to attempt to reach an acceptable settlement, to preview some of the likely issues that will arise at trial, and to determine with some clarity how disparately the parties view the case. In the simplest of terms, the case is being mediated so the parties can see what is being contested.
The Benefits of Mediation
There are numerous benefits of mediation for the plaintiff. The most important of these are:
- Mediation is a less expensive way than a trial to resolve a lawsuit. It likely will result in a higher net settlement after accounting for payments to subrogated parties, expert witness fees, and the time needed for ongoing discovery and trial appearances. This is especially true when the plaintiff considers that his or her time is valuable and that the demands of continuing discovery can significantly impact the plaintiff’s schedule and emotional health.
- Mediation offers a rapid conclusion to the case. Plaintiffs often become frustrated, exhausted, and disenchanted after the journey through trial discovery and motions. A settlement at mediation brings a sense of closure for the plaintiff, who can move on with life and take the focus off litigation. Moreover, once a case has been settled at mediation, there is virtually no risk of an appeal. Unfortunately, the same is not true of a trial verdict because trial verdicts are often appealed, which is another lengthy process that the plaintiff must endure.
- Mediation offers the plaintiff some degree of control and predictability. The litigation process is amazingly bereft of client involvement. At mediation, the plaintiff is an active participant and has real power to affect an acceptable outcome. In fact, the plaintiff’s power at mediation arguably is greater than at trial, where the plaintiff will be subjected to cross-examination and judged by a panel of complete strangers whose verdict is impossible to predict. The plaintiff also retains the power not to settle the lawsuit at mediation.
What Will Happen at the Mediation
Typically, mediation will have the following cast of characters, who can be introduced to the plaintiff like this:
- Mediator – The mediator is an attorney. He is impartial in this case. His job is to help get the case settled and give his feedback to the parties if asked. He will focus on the damages in your case, so you can expect to spend some time talking about lost income and the loss of services. The mediator will start the mediation by introducing all the parties and discussing the process. Then, he takes the other side into a separate conference room and returns to talk in more detail. He will ask you some questions, and since everything you say to him is confidential, you should be open and honest.
- Insurance Company Representative – A representative from West Bend Insurance Company will attend the mediation. She has full authority to negotiate, and she will be the person making the final decision on how much to pay to try and settle your case. She is about your age and has two young children; the hope is for her to be fair.
- Plaintiff’s Attorney – The plaintiff’s attorney will be with you for the entire mediation. If you have any questions during the process, you will have the time to stop and talk through them before moving forward. If you wish to speak privately, the mediator will give you that option anytime during the mediation.
Potential Pitfalls for Plaintiffs
You must understand that the result of mediation is that everyone leaves unhappy. The very nature of mediation is compromise, which often equates with some measure of defeat. It is natural for a plaintiff to feel a sense of let-down when a case is settled. Before you decide to settle, you and your lawyer should talk extensively so that you do not ever doubt your decision to settle (or not to settle) in the future.
A second potential pitfall for a plaintiff at mediation is becoming defensive during the process. You are going to hear challenges to the damages in your case discussed at length. A mediator usually will spend time with each party discussing those challenges. Remember that when the mediator is in the other room talking with the defendant, the defendant is hearing about the negatives in their case as well.
You should not take personally much of what is said at mediation. The challenges of winning a case at trial sometimes have little to do with the plaintiff, and judgments about the case are not typically about you. You need to understand that cases are won and lost based on the facts and juries, not always on what is fair. The underlying theme in all of this is that you should remain patient and calm. Mediation can be a long, tedious, tiresome, bothersome, and unnerving process.
Ways to Prepare for the Mediation
One simple way to get ready for the mediation is to think of a handful of anecdotes you can share with the mediator about how the injury or wrongful death has changed your life. This will provide the mediator with valuable information to share with the defense in an effort to distinguish this particular case from any other. Since your losses occur daily and sometimes hourly, it will be hard to remember every way your life has changed, but thinking of the biggest instances of hardships will be of great help to the mediator.
Be sure to bring whatever you need to make mediation as comfortable as possible: snacks, a cell phone, or any other items that might make you feel calm in an otherwise foreign environment.
Be prepared to compromise. In order for your case to settle, each side will have to compromise. You will not get everything that you would get if you won at trial. The defendant does not expect you to walk out empty-handed, either, 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.
Understand the Numbers
At the end of the day, mediation is about numbers—specifically, dollar amounts. It is easy to get lost in the welter of numbers as a case nears settlement: gross amount, net amount, subrogated payments, costs, fees, and unpaid bills, to name just a few. Be confident that your lawyer will not let you get lost in the numbers that are being thrown around.
The only number that matters to you is the net amount you will receive if the case is settled. Your lawyer will keep you informed of that number as you proceed throughout the mediation process. If you decide to settle your case, you will know the amount you will receive after deducting all the fees and costs. You will also have the benefit of a financial assistant from Capital Funding present at the mediation in case you have any questions about purchasing annuities.
Finally, and probably the most valuable advice you need, is to be patient and try hard not to become anxious about mediation. This is your day to present your case to the other side. If at any point you want to stop the process, you have that option. Moreover, this is an opportunity for you to settle your case fairly and move forward without constantly reliving the horror of what you have been through.
