Number One Way to Ruin Mediation of your Personal Injury Lawsuit

July 12, 2021 by Barry Zlotowicz Law Firms 

Number One Way to Ruin Mediation of your Personal Injury Lawsuit

Are you about to go to mediation in a personal injury lawsuit? Read this short article to learn the number one way you can blow your mediation and some other tips as well.

Mediation can be used before a lawsuit is filed. However, the more typical scenario is that a lawsuit gets filed and then you go through some of the discovery process and then the parties engage in a mediation to try and resolve the dispute.

A mediation can benefit you so much, but in this article, I want to start out by telling you the one thing you can do to blow the mediation wide open.

And that is you can go into the mediation and act for lack of a better word, like a jerk.

I had a mediation one time where the defendant actually showed up to the mediation and the defendant was disruptive during the mediation. He kept making faces and throwing his arms up in the air and interrupting people and commenting.

We weren’t able to get the case settled at the mediation. However, shortly thereafter, the defense attorney reached out to us, and we settled the case. And here’s why, because they realized that their client was going to be a horrible witness if the case went to trial.

So, it’s critical to behave yourself with respect at a mediation and appreciate what the mediation process is – an attempt to resolve your case, and also a place where you can learn information about what the other side’s going to argue if the case goes to trial.

Always go to mediation with good faith intent to try and resolve your case. But if that’s not possible and quite often, it’s not possible. Then use the mediation as a way to gather intelligence about what the other side is going to argue and how you can counter their arguments later on.

How the Mediation Process Works

I want to tell you a little bit about how the mediation process is going to work for you. So first of all, you were involved in a personal injury accident. Your personal injury lawyer has probably filed a lawsuit and you’ve gone through some of the discovery process. You’ve answered interrogatories, which are questions that the other side can ask you and you can ask them, maybe you’ve had your deposition taken. Maybe they’ve spoken to experts.

And now it’s the time for the parties to get together, to see if you can resolve this lawsuit amicably before you go to trial.

First, you and the other side are going to pick the mediator to do the mediation. So, you’re going to have a say in who mediates this matter. Chances are it’s going to be a judge or a very experienced personal injury attorney who offers mediation services on the side.

The great thing about the mediator is that they are a hundred percent neutral. They don’t have a vested stake in the outcome of the mediation. They’re not getting a percentage of the case. Their goal is to get the case settled if they possibly can.

If you’re representing yourself, you may not know where to go to, to find a mediator. Don’t just take the other side’s word for it that the mediator that they want to use is good. Call your local bar association and get a recommendation. Oftentimes there’s a group of mediators who work in your area that you can select from.

How to Prepare for a Mediation

Normally, the mediator will set the ground rules for the mediation in advance of the mediation. So you’re going to know what to expect before you get there.

Hopefully you’re going to meet with your attorney before the mediation and do some sort of preparation in advance of the mediation.

Many attorneys like to prepare what’s called a mediation brief that updates the mediator on our position, on the issues and how much we’re looking to recover.

How the Mediation Works

Then the day of the mediation arrives. And here’s how it’s going to work. Generally speaking, you’re all going to start in the same way room. You and your attorney on one side and the insurance adjuster and their defense attorney on the other with the mediator in the middle.

Oftentimes your attorney will start out and give an opening statement. You may even have an opportunity to say something if you want to. The defense attorney may make a statement as well.

Then, chances are you’re going to split up and the mediator is going to meet with you and the other side separately – sometimes people call that a ‘caucus.’  The idea is for the mediator to elicit information from you so that she or he can try to find a common ground between the parties to resolve the case.

Should I Listen to the Mediator?

When it’s your turn to meet with the mediator, listen to what they have to say. These people are experts. You may think you have a million dollar case, but if the mediator tells you that he or she thinks that at trial, you could recover $60,000 to $70,000, you might want to consider listening to what the mediator has to say.

I’m not saying that their opinion is the end all be all. And there’s no obligation in a mediation to accept any kind of settlement offer. I’m just saying, it’s a good practice to listen to what the mediator has to say about the strengths and weaknesses of your case.

What if the Case Doesn’t Settle at Mediation?

The mediator is going to go back and forth between your room and the room with the defendant’s attorney and the defendant’s insurance adjuster. And hopefully you’re going to come back and forth and find a number that you can settle on.

But if you don’t, it’s no problem. Mediations oftentimes are unsuccessful. That’s okay as long as you use the mediation properly. You showed that you would be a good witness on the stand and you used it to find out information about the other side is going to argue.

If you keep these things in mind there is no way that a mediation can be a waste of time, no matter what the result of the mediation is.

If you do not settle at mediation, then the litigation will continue on until you get your trial date.

If you are about to go to mediation in a personal injury lawsuit, contact our office for a free strategy session to discuss your case at 1-847-305-4105.


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