MEDIATION IN A PERSONAL INJURY CASE - CHAPTERS TWELVE, THIRTEEN, AND FOURTEEN
WHAT IS THE OUTCOME OF THE PERSONAL INJURY MEDIATION?
At the end of the mediation, there will either be a settlement or the mediator will declare an impasse. Occasionally, both sides leave with the mediator proposal and take a few days to come up with their decision. If a settlement is reached, then the case will be over. If there was a minor involved, then there will be a minor settlement hearing in order to obtain the court’s approval for the settlement on behalf of the minor. If the mediator declares an impasse, then the parties will find themselves in their original position, and eventually the case will be tried.
How Long Does The Mediation Process Take?
For cases valued under $100,000, mediation can be completed in half a day, whereas cases valued at over $100,000 usually require a full day of mediation. Mediation in multi-million dollar cases can last for two days, or be extended into two separate mediations. For example, my partner and I once handled a death case in which one million dollars was offered at the first mediation. At the second mediation one year later, the offer was three million dollars. That case involved an explosion and a very gruesome death, and at the end of jury selection with trial about to start, we settled for $7.5 million. Mediation is a fabulous tool that works most of the time, but it is always smart to be prepared to walk. If the other side can sense fear and desperation, then a lousy settlement will be offered.
What If The Settlement For My Personal Injury Case Is Not Reached At The Mediation?
If a case does not settle at mediation, the lawsuit would continue as though nothing had happened. Remember, if the plaintiff is being unreasonable, the defense also has the right to a jury trial.
PREPARING FOR THE
Client preparation is not difficult, but it is critically important. Every single one of my clients asks whether or not they will have to say anything during mediation, perhaps because people in general are terrified of speaking in public. The answer is no; the client should never speak directly to the other side. They have a lawyer for a reason, and that lawyer is their advocate who has the knowledge, education, and experience to represent them. Clients hold collections of misinformation, half-truths, and outright nonsense that have been fed to them by the media and well-meaning yet clueless family members and friends. A client could make a fatal mistake in the course of speaking to the other side, so it is critical to ensure that they don’t.
It is also important that clients do not exhibit signs of anger, smirk, behave sarcastically, or roll their eyes. They should be dressed as if they were headed to church—men should wear dress slacks, a dress shirt, and a tie, or a suit if they own and are comfortable wearing one. Women should wear a modest dress, or slacks and a modest blouse. There should be no fancy or expensive jewelry worn by anyone, and no revealing clothes. This is not a cocktail party. Clients need to appear serious and humble; I can win with humility every time. Anger or arrogance will lower the value of a plaintiff’s case in the eyes of the defense counsel and the jury (if the case winds up in trial).
I once represented a client who was virtually un-coachable. No matter what advice she was given, she had to do it her way. Her deposition testimony was obnoxious and filled with vitriol. Occasionally, she would switch to whining and complaining about the entire universe. The store personnel, store manager, ambulance technicians and doctors were all uncaring and incompetent. In fact, I have no doubt that had I not been in the room, she would have expounded upon the stupidity of her lawyer. At the end of the deposition, I invited the defense counsel to stay and have a discussion. Once my client left the office, I asked the defense counsel what he thought of her. In response, he held up his legal pad, on which was written the single word, “unlikeable!” I settled the case for what I could get, but my client had mortally wounded her case.
It’s important for clients to understand that the initial demand is a starting point. For example, if five million dollars is initially demanded, it is unlikely that they will receive that amount. They also need to be prepared for a low-ball offer. They need to get their emotions out of the process and not react to the other side. Clients also need to be prepared for what the other side will say. In order to prepare my clients, I will make a mock defense closing argument in private to ensure my clients are ready for the other side’s statement during the joint session.
Clients need to remain stoic and just listen. I have handled a number of cases involving the death of a loved one in which the client was crying uncontrollably while we were presenting the case. Under such circumstances, I will have one of my assistants take them out of the mediation so that they can compose themselves in private. There is nothing wrong with this. Oftentimes, a client will ask me what will happen if they cry, and I tell them there is nothing wrong with that; we are all human. However, I would never want my client to fake their emotions, because if the other side were to get a hint that they were putting on a show, it would ruin the value of the case.
COST OF MEDIATION AND ITS EFFECT ON SETTLEMENT AMOUNT
Mediation is not expensive at all when considering the cost of litigation. I will share some numbers that apply to the year 2018. One deposition from a doctor will cost around $7,500. The doctor will charge $5,000 just for his time to prepare and review the medical records, meet with me beforehand, and sit for the actual deposition. The stenographer who will record the doctor’s deposition and the videographer who will film the deposition will each charge about $1,000. An editor will splice the footage to give me succinct admissible testimony for the jury at a cost of about $500.
A good mediator will charge between $1,500 and $3,000 per side. Mediation is a bargain at twice the price. For less than the cost of one deposition, I could possibly get an entire case settled. If it were to settle, that would prevent the client from having to pay for a full-blown jury trial, which can range anywhere from $25,000 to $500,000 depending on what is at stake and how hard the other side is fighting. In that respect, mediation is an actual steal.
Is An Attorney Required To Go To Mediation?
An attorney is not required in order to mediate, but it would be very unwise to enter mediation without one. For example, doctors perform over half a million tonsillectomies per year, which are such simple procedures that they are only paid $300 per operation. The operation looks so easy that it would seem as though anyone could do it. Why would someone need a doctor? Well, are you going to get a mirror and a pair of pliers and remove your own tonsils, since it looks so easy? No, of course not. There are a million things that could go wrong if you are not properly trained. It is the same if someone decides to mediate without a lawyer.
For example, a man was once injured by a car falling off a jack in a garage. The adjuster came out to the shop, inspected the scene, spoke with the injured man, and then wrote him a $20,000 check on the spot. The man who had been injured bragged to his friends about how “he did not need a lawyer” and now gets to keep all of the money. Unfortunately this man had no health insurance, and when his nagging back pain did not go away, he finally had to go to a doctor. He discovered that he had a ruptured disc in his back and needed a surgery that would cause approximately $120,000.
When he hired me to represent him, we immediately called the insurance carrier to open a claim. However, the insurance carrier informed us that the case had already been settled for $20,000, and that the client had signed a release. When confronted with these facts, he admitted that he had signed it, but claimed that it was not valid because he did not read it. Wrong, wrong, wrong. He had settled his $250,000 case for $20,000 and had no way to pay for the surgery he needed. The bottom line is that a person can handle their own legal affairs without an attorney, but they shouldn’t. As Abe Lincoln said, “A man who represents himself has a fool for a client.”