What to Expect During the Mediation of Your Personal Injury Case
It is usually a good idea to see if your case can be mediated before trial and this is something that you would do in consultation with your attorney. The majority of personal injury cases settle before trial. And there are dedicated mediation services in the New York City area that specialize in mediating cases.
The mediation centers have a staff of mediators who are neutrals. This means that they are there to try and bring the two adversaries to a reasonable settlement of the case. The mediators are often retired Judges or former lawyers who have a great deal of experience in mediations. Because the mediators are neutrals this means that they do not favor either one side or another.
Your attorney should seek to cooperate with your adversary to determine what neutral mediator that both sides believe would be useful to reaching a reasonable settlement. Your attorney may have prior experience with using the mediator or the mediator may be recommended by another lawyer he knows. There will also be an opportunity to research the resume of the proposed mediator and, if they are a retired judge to review some of their prior rulings that may be similar to your case.
Retired Judges often bring a great deal of candor, experience, and sagacity to the mediation process. They also have a great deal of respect from both sides, and it is important to listen to the feedback they give during the mediation process.
Going to trial carries with it risks of an adverse verdict. After all the time, effort, and expense you and your lawyer have put into a case, loosing at trial can be quite a blow. All personal injury cases with merit have a value. What happens during mediation is that both sides weigh the risks, and benefits of going or not going to trial. Sometimes cases cannot settle. But more often than not, cases do settle at trial and some of those settlements can be significant.
If you are the injured party, you have the final say in whether you take a settlement offer or not take a settlement offer. And this is why it is very important to listen to the advice of your attorney, and the input from the mediator. Particularly the mediator during the negotiation process as they will make clear what they believe they can or cannot achieve.
The structure of the mediation often goes like this. Both sides are in one room seated around a conference table. The Plaintiff (the person who sued), presents their side of the case first. This is the time for your attorney to present a strong argument of liability (meaning fault), against the Defendant (the person who was sued), and the consequential damages to you, the injured party, and why the law is in your favor, and why the case will appeal to a jury. You can also request a chance to speak. Perhaps you are representing a son or daughter, you can be their voice. Show your emotion, show your adversary why and how your family was injured. How much you lost. How this will affect you the rest of your life. If you for example have an injured hand, they may ask to see the scar from your hand surgery. You are an important part of the process, but likely your attorney will do most if not all of the talking in advocacy of your case. But do not be afraid to speak your mind about your personal injuries. It will show the Defendants that you are a good witness and personal advocate, in other words you are credible and the jury will relate to you. Credibility is very important at trial. Jurors are in effect the judges of your case there to decide if facts are true or false. Your credibility is critical.
Present on the part of the Defendants are the lawyer(s) for the defense, and the representative of the insurance company. It is always better for settlement if you have more than one insurance company involved in your case. This will possibly occur if you have sued two independent parties who are responsible for your case. For example, if you case was a trip and fall that caused you to sustain broken bones from a newly poured sidewalk, then your lawyer may have sued, both the construction company who poured the sidewalk, and the building owner whose responsibility was to maintain the sidewalk in front of their building.
Your case may not be the only case that they Defense firm or insurance carriers are settling on that day. They may have several cases on their calendar. The important point is that now you have a real opportunity to settle your case.
After both sides have had a chance to air their viewpoint then the mediator will invite you into a separate rooms. The mediator will now deal with your initial demand, which is the argument that your lawyer should have been building up for. Initial demand simply means that this is the amount of money you are first demanding to settle your case.
The Defendants will make an offer to settle your case. And this back and forth will go on where each side gives a little to get a little. Your attorney and or the mediator may make a recommendation to you and bracket you by saying for example. If you come down to such and such an amount then the Defendants will come up to such and such an amount. Use the wisdom and guidance from your lawyer to determine if this is a good step. It can speed things up and distill the bottom lines.
If there is one things that I want you to take away from reading this blog about mediation and your personal injury case or medical malpractice case is the following. One word. Cooperate, cooperate, cooperate.
Hard to believe isn’t it? No one is tell you not to fight, be strong or anchor your position at some point. What I am saying is that cooperation, and some flexibility is important. Listen to the mediator. Listen to what she has to say. Listen to the viewpoint of your adversary.
Being an injured party, having lost so much in life, due to a medical malpractice case or a person injury case is highly charged and emotional. This is the time for cooler heads to prevail. I remember a professor I had in law school who taught negotiation and mediation. He was a great teacher. And our school had at times placed number one in the country or close to it in competition related to negotiation advocacy. He said to always cooperate. Let’s be real, there is potentially big money on the table that can help you and your family overcome the trauma that your personal injury or medical malpractice negligence has caused. Being real is about realizing the risks that are realistically understood by your adversary and why avoiding trial is important. Being real is about realizing the risks of an adverse verdict or a low award.
Some cases cannot settle. During the mediation process this will become evident a some point in time. The case needs to proceed to trial. The case may have an opportunity to settle later. Once a jury is selected a defendant may recommend to the insurance carrier to settle the case. The Defendant’s lawyer may seek to meet your demand at trial, once they have cross examined your expert doctor at trial or when a jury has gone out to deliberate. At that time a Defendant may change their position. But hoping the offer will come up, because you are at trial is not a good way to proceed. You should proceed to trial on the advice of your lawyer, if the settlement is too low, giving the facts of your case, and the venue (place where the case is being heard), the nature of your provable damages, and degree of liability or fault on the part of the Defendant.
If you are able to settle your case, then your lawyer will be presented with a stipulation reciting the amount your case has settled for and how much each carrier has promised to contribute to the settlement, if there is more than one carrier involved in the Defense.
Mediation can happen at any stage in the litigation of the case. But is usually best done after key depositions have been completed, depositions are proceedings under oath, and usually yours will be held in your lawyers office and the Defendant’s will be in their lawyer’s office. You have a right to be present at all Depositions, but your attendance is not mandatory, only for your own deposition of course.
Mediation is not required to settle your case. Your attorney can deal directly with the Defendant’s lawyer who has the ear of the insurance carrier or he may have authorization to speak to them directly.
I hope that this has given you some insight that would be helpful in aiding you in settling your personal injury case or medical malpractice case. Remember they most important thing to remember listen to the advice of your lawyer, listen to the input of the neutral mediator, and cooperate. In the end if you settle your personal injury case, you will be happy to learn that your settlement or award for your personal injuries are all tax free.
Thank you for reading this blog.
Manuel Moses, Esq.
236 West 26th Street Suite 303
New York, New York 10001
(212) 736-2624 x11
Licensed in New York State Only.
Nothing in this blog is intended to be formal legal advice. You should always seek the advice of a trained lawyer who you have retained to advise you on the facts specific to your case.
What to Expect During the Mediation of Your Personal Injury or Medical Malpractice Case was originally published on Manuel Moses Law Office – New York, NY | Personal Injury Attorney | Free Consultation (212) 736-2624 Ext. 11