Settling personal injury claims is often best when done through mediation. Sometimes the mediations are voluntary between the parties, and at others, they are deemed mandatory for the personal injury case before it is given a trial date.
Mastering personal injury mediations require preparedness, patience, and a willingness from the affected parties to compromise. One other important step for a successful mediation is the open exchange of information between the two sides. A mediator does not always need to have loads of experience but needs to understand the fundamentals behind the dynamics of a negotiation.
7 Tips for difficult cases
Difficult cases, especially if one of the parties involved is determined to win or is reluctant to negotiate can be difficult to negotiate.
These seven tips, provided by experienced litigators, can help you master even the most difficult cases.
Talking leads to resolution
In most cases, the two opposing sides will have two different views about how the settlement must go, and the gap often seems impossible to bridge. Most times, the disagreements are not based on reason, but emotion.
This polarization is what demands mediation in the first place. Getting everyone around the table is the right opportunity to get the parties to go beyond their emotions. The aim is to get them to agree to a reasonable resolution.
When the two parties initially sit down, naturally, there will be differences in opinion about who was responsible and about the initial amounts laid down on the table. It is up to the mediator to keep the parties interested in a solution. The best way to do this for them to be encouraged to talk the matter through for as long as possible.
Know if the parties are ready to settle
It would be ideal if cases where mediated from the outset. However, most people tend to leave it until they are faced with a deadline or faced with a trial.
The earlier the mediation takes place the sooner the plaintiff will be able to reconsider an expensive or ill-advised lawsuit. If the plaintiff needs an early resolution for financial reasons then accelerated mediations are necessary. The earlier the two opposing lawyers make the preparations the sooner mediation can take place.
Court-mandated mediations are an opportunity to exchange vital information, update discovery, and to open the way for future negotiations if necessary.
Sometimes talking to opposing counsel can help find out if their side is ready to settle. The mediator can have a confidential talk with both parties to see if they are ready to resolve the matter.
The choice of mediator is important
A mediator needs to be carefully chosen according to their qualifications, experience, and mediation methods.
Mediation styles often differ and some mediators are facilitators and refrain from expressing opinions, while others are evaluators who express opinions on the merits. Choosing a mediator who combines the two is usually the wisest approach.
Additionally, litigators like using a mediator that is approved by the other side. Adversaries are more likely to accept mediation if they trust the mediator. Relationships with the mediator should always be disclosed.
Importance of a pre-mediation discussion
The counsel of the parties and mediators need a pre-mediation discussion to help prepare properly. Issues that should be discussed include ensuring enough time is set aside for the mediation, setting a date to exchange of the position papers, how the process will be conducted, and the joint presentation.
They should also make sure that the person with the authority to make the full settlement is present at the mediation.
A litigator can also make a confidential call to the mediator to convey information about the client that could affect the mediation. The better prepared the mediator the easier it is to settle most cases.
Never set a time limit to negotiations
There are no difficult or easy cases when it comes to mediation. Often an attorney feels the case is “simple” but the process of negotiations can drag on, and vice versa. Mediations require an open mind and patience.
The most experienced lawyers suggest an entire day is set aside for mediation. Often the mediator needs to speak separately with both parties about issues like the risks of litigation before they can even begin the process. Mediation is only over once it is settled and the more time it is given the easier it is to get to that point.
Client preparation is important
Mediations are not court proceedings and a client may unaware of this. The best way to prepare them is in person, and they need to be made aware that the role of the mediator is neutral.
They should also be aware they always need to be reasonable and courteous, willing to agree when their opponents are right. They should also avoid making false statements or risk damaging their credibility by getting angry or aggressive. A discussion of at least two amounts they are willing to settle is also important to arrive at the mediation prepared.