No one ever imagines that they will be involved in an accident that results in injury, let alone mediation or trial to recover for their damages sustained in the accident. Sometimes an injury claim will not go to court and may be settled through mediation. Making the decision to mediate is best left to your lawyer, taking into account various strategic factors. It may be helpful for those who have been injured to be familiar with the “Do’s and Don’ts” that a skilled South Carolina injury attorney is likely to adopt in the mediation process.
Mediation is a tool used by lawyers in which the parties to a controversy sit down with each other to talk about the claim and try to reach a resolution. It is a voluntary process in which a third-party neutral “mediator” facilitates settlement discussions between parties with the goal of resolving the dispute while it is still in the control of the parties and without the expense of trial. As soon as everyone has fairly complete information, a potentially successful mediation can be scheduled. Sometimes, filing a lawsuit is necessary to utilize the formal discovery process to obtain the information needed to completely evaluate a case and to put the case in the best posture for successful negotiations.
In a recent article, Frederick I. Hall, III of Hall & Sanders gave the following pointers for making a successful mediation:
- Do: Prepare your case as if you were going to court. This gives the other side a glimpse of how all issues would be argued at trial. Have all arguments ready and all supporting documents. Prepare your client as to the procedure and goals of mediation.
- Do: Prepare a memorandum for the mediator so that the mediator is fully informed and can operate intelligently toward resolving the crucial points of dispute.
- Do: Confirm who will be present. Insist that someone with full authority to settle the case is present on all sides.
- Do: Give an opening statement. It should be well-organized like at trial and should be directed toward the adjuster. Touch on all of the points that drive the value of the case, even those that seem clear, as to liability and damages.
- Do: Use visual aids and demonstrative exhibits.
- Do: Direct your presentation to the one with settlement authority.
- Do: Educate the mediator.
- Do: Know your range of settlement. Know the range in which you want to begin and the bottom line. Be slow to reveal the bottom line, even to the mediator. Knowing the bottom line means you already have all liens resolved and the disbursement sheet finalized so that you can reach the bottom line with the client intelligently. Make sure the demand is not outrageous or so high as to be offensive to the reasonable professionals involved.
- Do: Listen to the mediator’s questions and comments.
- Do: Be patient and allow the mediator to do his job.
- Don’t: Avoid intimidation. Instead, persuade.
- Don’t: Close the door. If the mediation is not successful, do not close the door to reconvening with more information that might resolve the unresolved issues.
- Don’t: Make unreasonable settlement offers.
See Frederick I. Hall, III, “Do’s and Don’ts for an Effective Mediation”, The Justice Bulletin, p. 22, Fall 2009.
In our practice, we can push the collection of information and have mediations as soon as all of the information is available for the insurance company to evaluate. Here are some additional rules of thumb from Mr. Hall’s article:
- Give the insurance carrier everything at least 30 days prior to a mediation.
- Mediate at a pivotal point: you have all of the information needed to evaluate the case, but there is a pressure point where the carrier and client both have something to gain by coming to the table to talk (i.e. they will save money on expensive trial depositions; mediation will occur before unpredictable depositions that could go either way to break the case for one side or the other).
- Carriers expect a high initial demand (within reason). Do not come off of that demand in increments that are much larger than the increments the carrier comes up on its offer. Most mediations have an unspoken script of working to meet in the middle–be very careful not to stray from that format.
- Leave plenty of time for trial preparation if the mediation fails; try to avoid mediations too close to trial.
The information relayed in this blog is for educational purposes only and is not legal advice. The cases referenced and explained by the blog’s author(s) are for informational purposes only and are not intended to imply that certain, or similar, results may be achieved in each client’s case.
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