Attorney Ben Schwartz explains what to expect during a mediation settlement conference in a personal injury case.
I’m Attorney Ben Schwartz.
Today, we’re going to talk about what to expect when going to a mediation settlement conference in a personal injury case. I handle personal injury cases in Delaware and Maryland. Other attorneys in my office handle cases in Pennsylvania and New Jersey. In a lot of these cases, especially the more substantial personal injury cases, we go to what is called mediation settlement conferences. Everybody is put in a room, and we see if we can work out a settlement. What I want to do today is to talk about what to expect if you have been injured in an accident, and you’ve got a personal injury claim. Your attorney tells you, “We need to go to a mediation settlement conference.”
Prior to the mediation, it’s likely that the attorney is going to put together a package of documents: medical records, medical reports, lost wage documentation, a copy of the police report, narrative reports from the treating physicians if this was an auto accident, and other documentation to substantiate your claims. Your attorney will put together the package, summarize it and give it to the mediator. Your attorney and the mediator will not give it to the other attorney, but this packet is just to let the mediator know what the case is about as well as the strengths and weaknesses of the case.
Every personal injury case has strengths; most personal injury cases have weaknesses, too. For example, let’s say you were injured in an automobile accident while you were driving. You state you had the green light, and you went into the intersection on green. There may be a witness who says they thought you had the red light. That would be considered a weakness if the case goes to trial. The jury may find that you didn’t enter the intersection on green. This could result in a reduction of the jury verdict or it could result in a defense verdict if the case goes to trial. That’s something that I would want to let the mediator know about.
The mediator also ought to know the particulars of the injury: the number of damages and the amount of money that’s being claimed. For example, let’s say you have a case with a hundred and fifty thousand dollars in medical expenses. You need to let the mediator know that those medical expenses exist so that the mediator is on the same page with you. Prior to the mediation, the attorney representing the injured person, or the plaintiff, put together a mediation package and submits it to the mediator.
The mediator is generally another personal injury attorney who really has nothing to do with the case. This is a person who is completely neutral, and it doesn’t really make a difference one way or the other to this individual whether the case goes to trial, whether it settles, whether it settles for a lot or a little, etc. The mediator is not really interested in the outcome. The mediator is interested in the process and to help the case move towards a settlement. Generally, the person that we select as our mediator in our personal injury cases will be a personal injury attorney or a former judge who has a lot of experience in handling other cases of a similar nature.
After we’ve selected our mediator, put together our mediation package, and submitted it to the mediator, we are going to show up in the mediator’s office. Let’s say I’m representing the plaintiff. Inside the office will be me, my client (the plaintiff and the injured person). You will also see the defense attorney and a claims representative who is handling the case for the at-fault person’s insurance company. Of course, the mediator will be there, too. It is actually rare for the at-fault person to show up to mediation. In my opinion, there’s not usually a good reason for the at-fault person to show up. If we have a car accident case and my client was entering the intersection on a green light and another driver ran a red light and smashed into my client, I would not expect the at-fault driver to show up at mediation. The purpose of mediation is not to argue over who is right or who is wrong. When you are handling personal injury claims, an insurance company will typically pay the damages award and compensation to the injured person. The at-fault person doesn’t need to show up.
When we get to the mediation settlement conference, everyone in the room signs an agreement to mediate. The big idea of signing the agreement to mediate means that you are agreeing that everything that happens in that mediation settlement conference will remain confidential. If it doesn’t settle, you can’t call the mediator to trial and discuss what you were told in a confidential setting by the at-fault driver’s insurance claims adjuster or the at-fault driver’s attorney. Mediation is confidential. The mediator will begin the mediation settlement hearing process by asking the plaintiff’s attorney if they have anything they want to say about the case. The mediator may ask the injured person if they have anything that they want to say at the settlement conference table. They will ask the defense attorney if they have any input that they want to give. After everyone has a say, the mediator typically will split the parties up. The plaintiff and the plaintiff’s attorney would be in one room. The defense attorney and the insurance adjuster would be in another room. The mediator goes back and forth in order to try and get the parties to the point where they are ready to settle the case.
You should not be surprised if get into the mediation and it’s similar to dealing with a rug merchant or buying a used car. It’s usually more detailed and there is a lot more back and forth than buying a car or house. Mediation is a transactional process. So for example, let’s say your demand is $100,000. The insurance company and the defense attorney might offer $15,000. Your next move would be to come down from your $100,000 demand, so you come down to $90,000. They go up to $25K. You come down to $85K; they go up to $30K. A lot of back and forth occurs until the mediator gets both parties together to settle the case. I think that people find that process unsettling.
Unless you’re an attorney who handles personal injury cases, there aren’t another sort of transactional negotiations where two parties go back and forth in such a manner. I find that my clients are unprepared for it. You are dealing with someone’s life. You are dealing with their personal injury case and trauma. I think that the process of the back and forth can cause more emotional trauma to someone who’s already been traumatized in a personal injury accident.
If you are the plaintiff, your attorney is trying to eke out every dollar of compensation he or she can get for you. At the same time, the insurance company’s defense attorney and the insurance adjuster are trying to save every penny that they can without overspending. Insurance companies are trying not to pay even when it’s a legitimate claim with a legitimate injury. They’re looking to get out from under it as cheaply as possible. That’s why you need an attorney at mediation. A good attorney will help you and protect you. Thanks for watching!