How Your Personal Injury Attorney Will Win at Mediation
Mediation is a process in which a third party (the mediator) assists opposing parties (the injury victim and, typically, an insurance adjuster or at-fault party) in reaching a voluntary settlement resolving a claim. In some cases, a court will force the parties into mediation. You are never required to agree on the terms of a deal, but a court might force you to at least participate in good faith. In other cases, both parties might agree to mediate.
Unlike arbitration and courtroom litigation, the mediator does not have the authority to impose a solution on the parties. Instead, the mediator must utilize their training to facilitate discussions and an agreement. Using an attorney at mediation is a great way to maximize your chances of avoiding a trial and reaching a settlement that you are happy with.
How Can a Personal Injury Lawyer Help With the Mediation Process?
An experienced personal injury lawyer has probably participated in personal injury mediation sessions on many prior occasions. This gives them the experience that a personal injury victim almost certainly lacks.
Following is a list of some of the more specific ways that a lawyer can help you in mediation.
Your lawyer’s previous mediation experience is likely to command the respect of the opposing party. Indeed, the opposing party might be someone who has faced your attorney in mediation before–and who knows which tricks they cannot pull on your lawyer.
Of course, your mediator can also derail some of these shenanigans. Nevertheless, it never hurts to have an advocate to help you as well.
All Mediating Takes Place in the Shadow of the Law
The time-honored aphorism “All bargaining takes place in the shadow of the law” means that parties bargain while taking into consideration what will happen in court if negotiations break down. If the outcome of a breakdown is likely to be a loss in court, the party will probably be more willing to bargain.
Since mediation is essentially “assisted negotiation,” the same principle applies to mediation. If your lawyer enjoys a good track record of winning in court, the opposing party is likely to be more receptive to the mediator’s settlement suggestions. This is far more likely to happen if the opposing party is dealing with a lawyer than if they are dealing with an accident victim.
Your lawyer is likely to realize quite quickly when the opposing party is acting in bad faith (deliberately delaying settlement to wear you down financially, for example). If this happens, your lawyer is also likely to know just how to handle it with the assistance of the mediator.
Your Lawyer Can Organize the Evidence You Rely On
Your lawyer might, for example, find someone to extract information about a truck accident from the truck’s event data recorder, something you might not have known about.
The Presence of Your Lawyer Can Encourage the Insurance Company to Take the Mediation Seriously
A busy insurance company executive might be tempted to send the “junior guy” to participate in a mediation. The problem here is that even if you reach an agreement, the real decision maker (probably an insurance adjuster) must approve the deal before it becomes final.
If the real decision maker refuses to approve the deal, all of you have wasted your time, and it’s back to the bargaining table. Your lawyer can probably prevent this from happening.
Your Lawyer Should Know How to Use Timing to Your Advantage
Your lawyer, if they are experienced, will use strategic presentations of evidence to gradually gain advantage in mediation. Often, a lawyer will use their best evidence, such as a statement uttered by an expert witness, as a card to play in the later stages of mediation.
An understanding of this kind of timing can greatly improve your chances of a generous settlement. This is especially likely to happen if the trial date is looming.
Your Lawyer Will Understand Mediation Confidentiality and Its Exceptions
Mediation is confidential—the statements you make in mediation are generally inadmissible at trial. There are certain exceptions, however, and your lawyer should know them by heart.
Your Lawyer Will Probably Have a More Objective View of Your Case Than You Will
Your lawyer is less likely to take matters personally, and they are less likely to (intentionally or unintentionally) insult or disrespect the other side. One of the main ways the mediation or settlement negotiations derails is when one side becomes stubborn simply because they feel that the other side has insulted or disrespected them.
Your Lawyer Can Help You “Build a Deal”
A good mediation lawyer knows that the goal is not “victory” for one side at the expense of the other. Instead, your attorney is likely to try to understand the opposing party’s underlying interests. They can then use that knowledge to build a deal that will make both parties happy. This takes a lot of skill and experience built over many years.
Your Lawyer Will Know When to Call It Quits (Strategically)
Even with a trained mediator present, it is sometimes impossible to reach an acceptable agreement with a stubborn opposing party. Ironically, calling it quits on mediation at just the right time might just stimulate a deal. Your lawyer’s “sixth sense,” gleaned from years of mediation experience, can help them know when to terminate mediation.
Beware If Your Attorney Seems to Be in a Big Hurry to Settle
Normally, your personal injury attorney is going to have the same interests as you. Since their fee amounts to a percentage of your compensation, the more money you make, the more money they make. This means they will probably work hard to maximize the amount of your settlement.
What happens, however, if your attorney is facing personal financial difficulty that you don’t know about? What if the bank is preparing to foreclose on their mortgage soon? Your attorney might be eager to settle your claim quickly, even for less than what it is worth. Since this is not in your best interests, keep a watch on any attorney who raises these suspicions.
Remember—your attorney can’t settle without your permission. Do not give this permission unless you are satisfied with the deal. If necessary, get a second opinion.
Hire an Experienced Florida Personal Injury Attorney for Mediation
Personal injury cases generally don’t reach the mediation stage unless negotiations have stalled. Typically, negotiations don’t stall unless the case is difficult to solve. If it is difficult to solve, you probably need a Florida personal injury lawyer to help you.
Mediation is no time to go it alone. The other side’s attorney will do their best to take advantage of you, even with a third-party mediator present. Contact Allen Law Firm, P.A. at (877) 511-5235 for a free consultation.