Mediation and your accident or injury case
Today, I begin an 8 part series about mediation from the perspective of you, the client. I’m a mediator. I’m also a lawyer who represents parties in personal injury (and a few other kinds of) cases. In this series, I hope to help clients understand what they can expect from mediation and be prepared. I'll address the same questions as I discuss mediation in eight different types of cases: personal injury or insurance cases, elder law matters, employment issues, divorce and custody, criminal wrongdoing, small business, and estate cases. Our firm offers both video mediation in Virginia, West Virginia, and the District of Columbia. We also provide in-person mediations in the Northern Shenandoah Valley including Loudoun, Clarke, Frederick, and Warren County, Virginia and in Berkeley and Jefferson County in West Virginia. If you have more questions about mediation, you can always sign up for a free 15-minute video or telephone meeting and I will personally answer your questions.
Today's entry discusses questions that may help people who have been injured and are working on settling their case with the insurance company. These personal injury cases are required to be mediated in most states.
What is mediation?
Mediation is an informal process used when the parties agree to work with a neutral third party to explore and locate common grounds in a dispute, often leading to a resolution of the conflict or civil case. Since most legal cases never go to trial, many are resolved at mediation. Parties may volunteer to mediate. In most jurisdictions, it is required that mediation occur before the trial. In personal injury cases, the plaintiff's lawyer and the defense lawyer will usually select a mediator by agreement. The parties should participate in that decision. When a party is not represented or is pro se, they may participate in mediation without counsel. The parties and their lawyers decide whether the mediation will be in person, by video, and where it will occur.
Is mediation required in a personal injury case? When does it occur?
Sometimes the court orders mediation, and other times it is voluntarily agreed to by both parties. Mediation often occurs late in the litigation just before the trial. However, I encourage parties to try mediation at the earliest possible opportunity. It often saves a lot of litigation expenses to freely exchange all documents before mediation and for the mediation to occur before expensive depositions or evaluations occur. It also may eliminate the stress that may parties feel during the months or years leading up to trial to resolve a dispute as early as possible.
What happens before the mediation?
Most injured parties, or plaintiffs, will meet with their lawyer before the mediation to prepare, just as they may prepare before trial. When I represent a plaintiff, we begin the preparatory meeting by reviewing what mediation is, the steps that the mediator will use, and what to expect during the mediation. We usually go over specific facts and issues regarding their case. Most importantly, we review why the client came to see me first and address their goals and expectations as to how their case might conclude. We consider all amounts that may need to be paid out of the settlement, such as subrogation liens, outstanding medical bills, legal fees, and costs. We usually determine if there is any value to the client in ending the case sooner than later. I like to talk with the client about their goals for how they will spend the settlement and consider how that might be reached during mediation. Finally, I review the options that the client will have and the consequences of pursuing the possibilities. I rely on Fisher and Ury's Getting to Yes to explore our BATNA, WATNA and MLATNA. With the client we ask, "What is the best alternative to reaching an agreement at mediation?” We have the difficult conversation about the worst thing that will happen if we don't reach an agreement. Spending the time to review the client's goals and potential outcomes, we are ready for mediation!
In cases where I represent parties in mediation, I often work with the other attorney to create an agreed mediation memorandum that we will provide to the mediator to know provide critical information as to what we agree to and what we disagree about. This can save time and money by streamlining mediation. My clients review the document before we send it to the mediator, to be sure we have an agreement on things such as the amount of the bills, liens, and often the underlying facts. In some cases, I also provide a confidential memorandum to the mediator to ensure all materials that I think the mediator needs to understand our legal arguments. When the other attorney refuses to submit an agreed memorandum to describe the case, I also send in the plaintiff's memorandum. Of course, all of these materials are provided to the client before the mediation.
In many cases, the mediator will ask the parties to sign a confidentiality statement or an agreement to mediate before the mediation begins. Since mediation is an entirely confidential process, the session remains confidential when even no such statement is signed. If required, I’ll review this document with the client before the mediation during our preparatory meeting.
What do I bring with me to mediation? What should I wear? Can my spouse or best friend come with me?
If you have a lawyer, you do not need to bring any materials to the mediation. As a matter of fact, you shouldn’t bring anything unless your lawyer tells you to. If you are representing yourself, bring the same type of exhibits that you will bring to trial.
You should dress nicely or in business attire, like you were going to church or to court. You will be making your first impression on the insurance claims representative and their lawyer. It will benefit you to make a good impression.
Check with your lawyer to see if you can bring anyone with you. I encourage my clients to bring a support person with them and usually the other parties do not object. However, that may not be the case in your area, so be sure to ask your lawyer.
What happens after I arrive at mediation?
You will usually be escorted with your lawyer to a conference room. Often, all parties meet in this room before the mediation begins. However, some mediators never have all of the parties or their lawyers meet and place all parties in separate rooms as soon as they arrive. However, most begin with joint meeting, so we’ll focus on that in this post.
Usually, whether the mediation is in person or online, the mediator will bring everyone into the room or into the virtual room to be introduced. Those present at the mediation are usually the plaintiff, or the injured person, their lawyer, the insurance claims adjuster, and the attorney representing the defendant. In most cases, the defendant does not attend the mediation in personal injury cases. The mediator will then outline the steps in mediation and describe how the events will be done during the mediation. Sometimes, the mediator will ask the lawyers to describe the events that lead to the injuries in an opening statement. Other mediators may ask the parties to describe the events. The purpose of this is to be sure that both sides understand what each is arguing. It may help the mediator, insurance adjusters, and lawyers understand what a jury may see in the rare event that the case did not settle. Some mediators skip this step since it can make parties more adversarial. If it is included in your mediation, as a party, remember that the lawyers are trying to advocate a position and that they do not have much evidence behind it. In other words, try not to let this throw you off your own story. Getting upset about a legal argument will not help you work through the case during the day.
Once the opening statements are over, most mediators will send each party and their lawyer to another room and use “caucus” to communicate offers and arguments back and forth. As a mediator, I often try to keep the parties in the same room as long as possible. However, it has become the practice in most areas where I work, for the mediation to occur primarily in caucus. This simply means that each team of lawyers and clients goes into separate rooms, either in physical spaces or online. The mediator goes back and forth between the two rooms, sharing information between the two sides. The personal injury mediator speaks to both lawyer and client, asking questions, locating common ground, and identifying strengths and weaknesses in each case.
What should you tell the mediator?
Remember that everything that is shared during mediation is confidential. Whatever you tell, the mediator will remain with the mediator unless both the client and lawyer agree. Most clients will have worked with their lawyer during the meetings preparing for mediation to understand how frank to be with the mediator and when the lawyer prefers to communicate a point or describe the situation.
How do you know if the mediator is doing a good job?
There are many different ways that personal injury mediators work. Some are facilitative and try to work with parties to help them reach an agreement. Others are transformative and may work with the parties to improve the relationship between the parties. In most personal injury cases, the mediator will use an evaluative approach. This means that he or she will likely point out strengths and weaknesses in the case. They may discuss rulings that a judge has made in cases similar to yours and describe how some juries respond. In other words, they evaluate both sides of the situation and then work with the parties to reach an agreement consistent with that evaluation. Usually, the evaluative mediator will carry offers back and forth to each side. Your mediator is good if he or she listens to you when you speak and indicates that they understand what you are saying. Your mediator should provide you with information that you need to make a decision and will definitely discuss with you the risks of going to trial and the benefits of settlement. Most experienced mediators frequently remind the parties about how expensive and risky a trial can be. They will tell everyone that you don't know who will be on your jury. A good mediator will discuss how expensive the expert witnesses are to bring to court. Mediators will remind you that you have far more control of the outcome during mediation than when putting your case in the hands of six random jurors. Similarly, they will be sure that the defendants know that they are providing their insured a benefit by not risking getting a verdict higher than policy limits that may mean the defendant will be responsible out of pocket.
Since mediators in personal injury matters use an evaluative approach, most of them are lawyers and former judges. They are often able to look at the legal arguments and help evaluate them. However, a good mediator is also a trained and experienced mediator. Some mediators have no more than a one or two day course in mediation, and some do not even have those qualifications. Others have gained advanced education in mediation, such as a master's degree. Some mediators have served an apprenticeship or other way to gain experience before becoming a mediator. Mediator education is essential since they will have the ability to engage in interest-based negotiations. They are trained to listen, and they are prepared to evaluate the underlying interests of the parties and to get to "yes." Mediators won't give legal advice. Only those who use the evaluative model (that is often controversial) will guess what a jury or judge would do.
What happens at the end of the mediation?
Once a settlement is reached, the mediator usually draws up a summary of the agreement, and everyone signs it. Additionally, paperwork will be necessary, such as a formal release and dismissal documents if the case is in court. Once the paperwork is completed, the case will resolve the same way as any settlement, with the settlement check being issued to the plaintiff and their counsel, deposited into the trust, and then disbursed to pay liens, outstanding bills, costs, and the rest to the client. When the mediator cannot get the agreement done, they may postpone the negotiations until the case is closer to trial. The mediator also may declare an impasse, and then the mediation is concluded. Of course, that doesn't mean that it won't settle. Remember, most cases settle. I address the post-mediation period at length in a former blog post.
Are there any tips on how I should act during mediation?
Listen carefully and try not to interrupt the other party or the mediator. They will be conveying information that will help you and your lawyer make decisions during mediation. I always advise my clients to listen, pay attention and bear in mind how personal injury mediation works. If the other lawyer makes comments that are not true or makes you feel angry, you will usually want to avoid reacting. It often makes a much better impression on the lawyer for you to seem calm and pulled together. Once you meet privately with your lawyer, you can freely discuss how angry or wrong the other attorney statements are. However, appearing calm will be advantageous to you.
Will mediation work?
Remember, most cases are resolved before trial. Of those, many will be resolved the day of mediation, or after the mediation. So, most likely, it will help you get to the place where you can resolve or settle your case. How much will you get? That depends on a lot of factors. Your lawyer can help you decide the value of your case, or what an objective evaluation my be, or guess as to what a judge and jury will do. Your lawyer should also work with you to figure out what the value of the case is to you and how comfortable you are with the matter taking time and money to get to the jury. Remember, your personal injury case is not a used car. While many people may use “fixed pie” negotiations, try to stay focused on how you want your life to look in one year, five years, and ten years and how the settlement may fit into your vision. If mediation doesn’t work, will we have wasted our time?
Even if an agreement is not reached, mediation is still beneficial. You may set the stage for a later settlement. You'll learn about the defendant's ideas on how they approach your case. You get a chance to show off your case. I rarely give up an opportunity to mediate since there are many potential gains spent sitting with the other side and talking about our views of the case.
What can you do to help me?
My office provides representation in mediation to our clients in personal injury matters. If you do not have a lawyer and wish to mediate your personal injury matter with an insurance company or with attorneys retained by the insurance company, we can help you work through the process. If you are looking to schedule personal injury mediation in West Virginia, D.C., or Virginia, we can help. Schedule your free 15 minute video or telephone meeting with Brenda today to discuss your options and help you make a decision you’ll be happy with in the long and short term.