What Happens at Mediation in a Lawsuit

The purpose of this article is to familiarize you with the process and prepare you for an upcoming mediation. “Under generally accepted conventions in negotiations, certain types of statements are not normally considered statements of material facts.” It states that “the importance of the price or value placed on the subject matter of a transaction and the intentions of a party with respect to an acceptable settlement of a receivable generally fall into this category.” The rule essentially creates an exception to the rule against false statements. So you can say ethically, “This is a final offer,” even if you know it`s not, even if you`re wondering if it`s advisable for your client. Some lawyers expect the opposing lawyer to take a breath during mediation and expect their opponent to ask them to do so. However, don`t lose your credibility. If you say “final offer” and keep negotiating, you have cried wolf. Another way to lose credibility is to make a scandalous request for openness and then make huge concessions. In one case, a plaintiff`s lawyer applied for $15 million and a follow-up request for $5 million. In the end, he received only $85,000. When he left the building, he asked the mediator if he could have done better, and the mediator replied, “Yes.” Sometimes a lawyer insists that a point is not negotiable and the offer later, which damages credibility. Keep in mind that whether the other party agrees depends, at least in part, on whether the other lawyer believes you`ve gone as far as you`ll go, and so credibility is important. One way to create credibility is to respond to an unacceptable offer by simply saying “no.” It`s amazing how difficult it is for some lawyers to simply say “no.” Some law schools film their students saying “no” just to help them study any nonverbal cues and hesitations that might indicate serious consideration of the offer.

When you say you`re “pretty much at the end of your rope,” “the train leaves the station,” or something like that, you`re just saying, “There`s more money left.” Any phrase or phrase that is not a “yes” is just a “no” with several qualifiers that could reveal your mental impressions. Even with the mediator, you don`t need to be completely open, e.B. from the beginning, your lower number has burst, but the mediator must finally know how much money can really still be spent, because an apparent impasse could be avoided. Often, when the mediator really needs to know the truth about the direction things are going, it will be in a hallway conversation. Of course, a lawyer must ensure that he does not reveal the client`s trust when talking to the mediator in the hallway. See Fla. Stat. § 44.405 regarding the lack of confidentiality of mediation notices offered to prove misconduct (for example. B breach of solicitor-client privilege). The main thing is to observe the principles of puff while maintaining credibility during mediation.

Insurance companies are able to resolve claims. They keep statistics on different types of cases. They probably won`t offer you more than what their statistics show for a case like yours that you should settle for. Since they have to deal with many cases, they know that even if they lose or make a bad case, they will win or succeed at another. As far as they are concerned, everything goes out into the laundry room. Don`t expect them to agree to pay more than they think your case is worth it. The lawyers, mediator and insurance company will talk about what a typical jury is likely to do based on their experience. What you want or need is not the criteria for an agreement. Instead, you should listen to what experienced people have to say about what you`re likely to bring if you go to court instead of settling the case. Often, a mediation settlement leads to more net recovery for you than a court ruling. Although the gross amount awarded at trial was higher than the amount paid at mediation, the net result for the plaintiff is lower. Litigation is costly because of the cost of testimony, physician testimony, other expert testimony, subpoenas, etc., which are necessary to present an effective case.

No one has a crystal ball. No one knows exactly what a jury will do in court. However, the lawyers, the mediator and the insurance company have a lot of experience and have a pretty good idea of what is likely to happen. However, there are always risks for both parties to go to court. If the case is not resolved, you will be able to recover less after a trial. If you lose, you have to pay a fee to the other party. There will be additional costs to go to court instead of accepting. You should consider all of these factors when deciding what a reasonable solution would be. Ultimately, you and the insurance company need to decide whether it makes more sense to settle down or try your luck and go to court. Tip #15: Keep mediation in perspective. As a lawyer, it is your duty to obtain the best possible result for your client among the facts and law in the rules of professionalism. You should make an effort to “possess the facts” and realize that the devil is in the details.

The better you know the case, the more likely you are to solve it favorably for your customer. Your goal is to win, but to be honest, it`s not your job to win. In fact, it`s often best not to evaluate how often you feel your customer has “won” or “lost.” There are many factors that contribute to the outcome of a case that we cannot control. It is important to keep the customer`s expectations reasonable whenever possible. Mediators often say that the sign of good mediation is that both parties reluctantly leave satisfied or even somewhat dissatisfied with the outcome, but relieved that the case is over. Clients who believe that lawyers want business to continue so that they can meet billing hours are mistaken. Lawyers always represent the best interests of their clients, not their own, and no one can deny that the stress and time spent in a case multiplies after mediation fails and the process is prepared. Lawyers should also keep in mind their own expectations. Some lawyers enter into a mediating agreement and are proud to do their best, while others are still disappointed that they have been deprived of a sense of complete victory (sometimes called the “winner`s curse”). Mediation is not a perfect science, and neither party will know if they could have done better if the mediator hadn`t told them.

Remember that the highest thing a lawyer can reasonably expect in mediation is to drag the other party to their reservation number or something beyond. If you get your opponent to withdraw 10% of his reserve, so much the better. A movement of 15% is excellent. You`ll probably never get 25%, but the fact is, you`ll really never know. If you can settle the case for a number acceptable to your client without the risk of litigation, you are doing a great service to your clients. .