Mediation Works!
Posted By Attorney Chris Marzzacco on Jan 8, 2010 2:07am PST
The majority of personal injury claims result in settlements made with the at-fault party's insurance company. In fact, in the South Central Pennsylvania area, I bet that almost 90% of all personal injury claims result in some type of settlement. What happens if the case doesn't settle? Traditionally, you would go to court and let a jury or judge decide your fate. There is an alternative to a judge or jury trial, however, and that is to resolve the case through mediation.
Mediation takes place when the injured victim and the other party's insurance company agree to meet with a neutral third party in an effort to resolve the case outside of court. Most mediators are former judges or experienced lawyers. At the mediation, the injured victim is represented by his or her personal injury attorney and the other party's insurance company is represented by its attorney. Most mediations take place in office conference rooms and are usually very informal. For example, unlike a jury trial, in a mediation the injured victim does not have to testify and is not required to present any witnesses. Rather, each lawyer usually makes some opening remarks about the case to the mediator while all parties are present in the room. Then the parties separate. The mediator then spends time with each party trying to determine if he or she can help the parties agree on a settlement figure. Often, this means that the mediator will go from room to room trying to bring the two sides to a reasonable resolution.
Does it work? In my experience, yes. Unlike a trial where both parties want to "win," in mediation, the parties attend because they have agreed to do so. Keep in mind that mediation is voluntary. Although both parties want to resolve the case in their favor, they realize that they will have to agree on a settlement figure or they will have to go to trial later. Knowing this, I have seen good things happen at mediations that don't happen at trial. For example in a recent injury case, we had made a settlement demand of over $250,000.00 to the at-fault party's insurance company, to which they made an offer of $0.00. Even after years of depositions, discovery and numerous negotiations, the insurance company's lawyer refused to settle the claim. My client understood that it is always risky to go to court. It looked like the case was headed for trial in the Court of Common Pleas, Dauphin County. However, Dauphin County rules require that the parties contemplate mediation before a case can be set for trial. Knowing this, we suggested mediation.
At the mediation, we again made our $250,000.00 demand. (You should know, however, that we felt that the case should settle for around $60,000.00 to $75,000.00). After separating, the mediator came into our room to inform us that the insurance company would offer $25,000.00. After discussing the pros and cons of the case a little further with the mediator, we offered $150,000.00. The mediator left to speak to the insurance company. Upon his return a few minutes later, he told us that the insurance company would agree to $50,000.00. This process continued for about 2 more hours with the insurance company making its "final offer" of $70,000.00, while we were at $110,000.00. At that point, the mediator assembled everyone and indicated that he was disappointed that we couldn't work this out. As a retired judge, he felt that we were close to the true value of the claim, but knew that each party would have to compromise a little bit more to get the case resolved. The mediator reminded each party of the risks of trial and the thousands of dollars each would have to spend to litigate the case in court. Also, he pointed out, if we resolved the case now, my client would receive her check in a week or so and not have to worry about a trial that would occur in about a year from that day. The mediator asked both parties to consider meeting in the middle of our respective figures, at around $90,000.00. Both parties separated one last time. A few minutes later, the mediator returned with a smile. We had resolved the case!
Did mediation work for my client? Absolutely--she settled a case that was headed for trial for well over the predicted value of the claim. Can I explain how the at-fault party's insurance company went from $0.00 to $25,000.00 to $50,000.00 to $70,000.00 to $90,000.00, but would not do so before? Yes. It was the nature of the mediation. At the mediation, the insurance company began to see its weaknesses and began to realize the risks and expenses it faced if we tried the case. Why did my client compromise? For the same reasons--we realized that a jury is always unpredictable. Also, you know the saying, "a bird in hand is worth two in the bush."
If you or a loved one has been injured by another in any type of accident, I am available to protect your legal rights. As an experienced persoanl injury lawyer, in all cases I handle, I prepare the case as if it will one day end up in trial before a jury. That way, my client's interests are protected and I'm prepared. However, I am a big fan of mediation. Mediation is inexpensive, quick and non-binding. In my experience, mediation is often the best way to get an injured victim the money he or she deserves. In the appropriate case, mediation works!