Fourth Stage Of A Personal Injury Lawsuit: Mediation

The fourth stage of a typical personal injury case is mediation.

Mediation is an assisted settlement conference. The participants in the mediation usually include the plaintiff, the plaintiff’s lawyer, the defendant’s lawyer, the insurance adjuster, and the mediator.

In many mediations, the parties gather together for an opening caucus. During that time, the mediator gives his canned speech on mediation. He will talk about the process, the benefits of settling the case, the uncertainties of trial, and other similar items. He will then give each of the parties the option to talk about their cases. Typically, the plaintiff’s lawyer will go first and talk about the plaintiff’s case, and then the defense lawyer will be second.

The opening session

The opening sessions can be hard on the parties. While both lawyers are often posturing some, their statements will still contain some truths, and often those truths are hard to hear. Unfortunately, in some mediations, the opposing lawyer takes those issues and can become overbearing. I tell most of my clients that they’ll come out of this opening session having heard several things that probably make them mad. But it’s part of the process.

The opening can serve several purposes. First, it allows the parties to speak their minds. Some parties just want to be heard. It also allows the insurance adjusters to evaluate the plaintiff. In most cases, the adjuster may not meet the plaintiff until the mediation.

However, the opening session also has the potential to drive the parties further apart. As a result, more and more mediators are starting to do away with the opening. Instead, they’ll start with the caucus part of mediation, where the parties are in separate rooms. I estimate that at least 50% of today's mediations are conducted without an opening session or with an opening session where the parties simply do a "meet and greet" to meet one another.

Shuttle diplomacy

After the opening session, the parties are broken up into two separate rooms. You and your lawyer will be in one room, and the adjuster and defense lawyer will be in a second room. At that point, the mediator starts engaging in shuttle diplomacy. He’ll spend time in one room with one party and then go to the other room with the other party, and he’ll continue to go back and forth.

The mediator may begin the caucuses by playing devil’s advocate in each session — asking the parties to assess their strengths and weaknesses, etc. The mediator may also take information back and forth between the rooms. But the mediator’s most important job is exchanging offers between the parties.

This process continues until the case settles or it becomes obvious that the case isn’t going to settle.

There are several unique things about the process. Importantly, the process is confidential in two different ways. If the case does not settle, then the parties can’t used what was said at mediation at the eventual trial. For example, during the opening session, the defense lawyer may say, “We know you are hurt, but we don’t think you’re hurt as bad as you claim.” At the trial, the plaintiff’s can’t try to use the attorney’s admission that “we know you are hurt.” None of that is allowed in as evidence or argument at the trial, and the mediator can’t be subpoenaed to go to court to talk about those things.

It’s also confidential during the day. The mediator should not repeat information you tell him to the other side unless you give him explicit permission to share that information.

If cases settle at mediation, it’s usually because both of the parties stretched beyond where they were comfortable. The plaintiff accepted less than he wanted, and the insurance company paid more than it wanted.

You need to know that the process is tiring. While you generally just sit in a chair for the day, most clients come out of a mediation worn out. The process is emotional and takes a toll on you. In fact, I think that is a key reason why it works. Clients and adjusters get beaten down to the point that they’re willing to settle. But that’s okay. Many mediators will tell you that a good settlement is one where both parties go away upset — the plaintiff accepted less than the plaintiff wanted, and the defendant paid more than the defendant wanted. That usually is a pretty good indication that the settlement is fair.

You should also know that most mediations work. Most cases that go to mediation do settle. But it’s not foolproof. We always have multiple mediation sessions per year that are a complete waste of time.

Today, with Covid, almost all mediations are conducted via zoom. When the pandemic started, I had some doubts about how this process would work, but now that we've been doing virtual mediation a while, I like it. I don't think the quality of the experience has gone down -- I'm still getting good settlements in virtual mediations, and it's flexible. The biggest downside of mediation was that we would be sitting by ourselves for thirty minutes, an hour, or even more while the mediator was in the other room talking to the defense lawyer. Now, with Zoom, I can spend that time working on other stuff, and my clients can spend that time at home doing whatever needs to be done. The biggest downside is that I don't get to spend person-to-person time with my clients, but hopefully we can find other ways to talk when the pandemic subsides.