Baxley Maniscalco Attorneys At Law
At our firm, we have a strong stance against mediation for our clients who have been in a car crash, bitten by a dog, or suffered a fall on someone else’s property.
Why? Because in personal injury cases, the defense team uses mediation at best as a stall tactic, and at worst as a method to break down the injured party.
Let’s unpack that a little.
Who Are the parties in a Personal Injury Matter?
On one side you have a plaintiff who was injured by someone else’s negligence. Many people often assume that that means on the other side of things, the defendant is the person who negligently injured the plaintiff.
While it’s correct that the negligent party is usually the named defendant, the reality is that the player behind the scenes, the negligent defendant’s insurance company, is the one calling the shots.
How Do Personal Injury Cases Usually End Up at Mediation?
When a personal injury case goes into litigation, that almost always means that the negligent person’s insurance has refused to pay the amount the plaintiff asked for to settle their claim.
This means one of two things:
- The insurance company is denying that their insured party is at fault; or
- The insurance company admits that the insured party is at fault but doesn’t agree that the plaintiff’s damages are reasonable.
Whichever argument the insurance company intends to use (and sometimes they use both), by the time a case gets into litigation, the insurance company has often refused to settle with the plaintiff multiple times.
When the case begins to progress through the litigation process, the attorneys for each side will take various steps to advance ‘the discovery process’.
What Does the Discovery Process Include?
Discovery is a way to find out what the other side will argue at trial and what evidence they will have to support it. You’re probably familiar with many of these discovery tools:
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Interrogatories: These are written questions, that must be answered by the defendant in writing, usually within thirty days, and which are answered under oath.
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Requests for Production: These are written requests for the defendant to provide documents in their possession. This often includes copies of any insurance policy providing coverage to the defendant, the defendant’s driving record, any photos or videos the defendant has concerning the incident, and any written statements the defendant (or his insurance company) has taken regarding the incident.
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Requests for Admissions: These are questions framed as admit or deny propositions (the lawyer’s equivalent of a true/false question on a test) asking the defendant to admit to certain facts about the incident. i.e. “Admit that you were driving a blue 2005 Toyota Corolla at the time of the collision.”
Depositions are another component. These are in-person (or via Zoom) sessions where the defendant must answer questions live and in real-time under oath.
Average Personal Injury Settlement
The average personal injury settlement typically ranges from $3,000 to $75,000. The likelihood of a payout of some amount is 70%. About 4% of cases go to trial. Settlements include money for medical bills, lost wages for time off work, mileage to and from medical appointments, pain and suffering, and loss of the ability to enjoy life.
We have found that the faster a case progresses through the discovery process without compromising thoroughness, the more seriously the defense begins to take our case.
One, it makes the defense attorneys look at the file because they are actively working on it frequently.
Two, it indicates that the plaintiff’s attorney is really getting ready for trial and plans to go through with it if their client is not paid fairly.
Crash to Cash in Twelve Months
This is a benchmark goal we’ve seen many personal injury firms use, and we think it’s a pretty good rule. While there are always outlier cases that have special circumstances, in most instances, a plaintiff can tell how severe their injuries are and the extent of the needed treatment within twelve months of the injury. What we’ve never seen is a case get better for the plaintiff when it drags on for a long time.
“Delay is the friend of the defense. ”
The insurance company for the defendant knows that an injured plaintiff is likely to be suffering cash shortages due to having their life upended by their injuries. They have probably missed time off work, are stacking up medical bills they cannot pay, and are unable to do routine maintenance and cleaning around the house like they used to be able to. These combined pressures come together into a formidable obstacle to holding out for the full value of the plaintiff’s case. The longer the case goes on, the more desperate a plaintiff becomes for some relief from their financial woes. This is where the dirty play for mediation by the insurance company comes in.
The Defense Asks to Go to Mediation
They usually say something particularly agreeable like “We are taking Mrs. Gilbert’s claim very seriously and we want to resolve it.” After months of grueling discovery and probably after having their deposition taken in an hours-long stress-inducing ordeal, the plaintiff feels some hope. Finally! This might all be over.
They’re finally going to take my claim seriously and make me a fair offer. The attorney may feel some relief, too. After months of fighting, maybe a fair resolution can be reached, and this case won’t need to go to trial.
What Actually Happens at Mediation
The plaintiff and her attorney show up on the morning of the mediation filled with hope. Today may be the day everything is finished! Maybe my bills can be paid next week. Then the mediator brings in the first response from the attorney for the insurance company.
“We’re still denying liability. The defendant did nothing wrong here. You’ll get nothing at trial.” OR “We don’t think much of this claim. Your client had pre-existing injuries. We’re offering $2,500.”
The plaintiff is crushed. Her heart begins to pound, adrenaline and fear flood her system, and she’s overwhelmed and confused. Then the mediator turns to her and begins to explain all of the holes in her case.
She knows that she’s really hurt, but doubt starts to creep in. Maybe no one else will believe her. Maybe she really did contribute to the accident in some way. Maybe she should just give up and let this all be over with.
She turns to her lawyer, who also has a panicked look in his eyes. He’s feeling the stress of the weaknesses in the case being thrown up before his eyes. The defense has gotten exactly what they came for.
Even if the plaintiff holds out and does not accept the pitifully small settlement amount being offered, the insurance company has accomplished what it came for: They’ve eroded the plaintiff’s confidence in her case and weighed her down with more burdens.
We just don’t believe in letting this happen to our clients.
If an insurance company is serious about resolving a case, all they have to do is put money on the table.
They can do that by a phone call to the attorney. They can do it in a letter or email. Making a real offer to settle a case is the easiest thing in the world if that is the true motive of the defense team. This is not a divorce case.
There is no need to work out a complicated visitation schedule between parents or divide the accumulated possessions of a lifetime. This is an injured plaintiff who deserves compensation for the injuries that have been caused by another person’s negligence, and on the other side is an insurance company that makes profits based on how little money they can end up paying out on claims.
The only motive of an insurance company is profit.
When Should an Injured Plaintiff Agree to Go to Mediation?
Sometimes, mediation is court-ordered and the plaintiff is required to attend. Maybe your lawyer believes the defense team truly wants to resolve the case in good faith and mediation is worth a try.
In either of these cases, we recommend setting a floor for the mediation.
How to Set a Floor for Mediation
Setting a mediation floor means that you require the defense to put a minimum offer on the table prior to agreeing to attend the mediation. For example, if your goal is to recover $250,000 in total compensation for your injuries, and the most the insurance company has ever offered to settle your claim for is $30,000, you would set a settlement floor of $100,000.
This lets you walk into the mediation knowing that the defense team is serious about putting substantial money on the table to resolve your claim and that they aren’t going to raise frivolous defenses about not being liable when you walk in prepared to negotiate numbers.
When the Insurance Company Refuses Your Demand
When the insurance company refuses your demand for a settlement floor, and they usually do, you will have exposed that the offer to mediate was a ploy to beat you up and demoralize you, and nothing more. You will have exposed this tactic without having subjected yourself to any of the bullying or stress that you would have endured if you agreed to attend.
If you are court-ordered to appear at the mediation, go over some parameters with your attorney before you walk in and stick to them rigidly.
For example:
We will not discuss liability (i.e., do not have the mediator walk into the room and talk to me about the facts that indicate the defendant did not cause my injuries).
If the first offer is less than $XXX, we will walk out.
Communicate your parameters to the mediator in your Confidential Mediation Statement (a document your attorney prepares and sends to the mediator ahead of time).
When Your Parameters Are Violated, Walk Out
When you’ve set your rules for the mediation and clearly communicated them to the mediator, and they aren’t met, do what you said you would and walk out.
You’ve complied with the court’s order merely by showing up for the mediation and allowing negotiations to begin. You are under absolutely no obligation to stay and listen to any further nonsense.
As a caveat here, mediators have an incredibly difficult job and we hold them in the highest regard, we simply don’t believe mediation is an effective tool for the plaintiff in a personal injury case.
Don’t Be Afraid
We know that this advice is nearly impossible to follow, but we want to encourage you. The defense does not like to try cases because it exposes the insurance company to risk.
If the defense attorney and insurance adjuster miscalculate, the insurance company may end up paying you a lot more than they could have settled the case for.
This doesn’t mean that cases never go to trial, because they do, but it does mean that in a lot of cases, the defense is bluffing. Even if the defense team isn’t bluffing and your case ends up on trial, as a plaintiff injured by someone else’s negligence, you’ve done nothing wrong and are entitled to justice.
Juries across the country are acknowledging that and awarding fair compensation to their neighbors. Your story should be heard and what you have suffered should be made right. We’re rooting for you!
Never Settle Cheaply
Don't let the defense manipulate you into settling for less than you deserve. At Baxley Maniscalco Injury Attorneys, we firmly advise against mediation for personal injury plaintiffs. Why? Because, mediation often serves as a tactic to delay or diminish rightful compensation, leaving injured parties vulnerable and discouraged.
When facing personal injury cases, the defense, usually represented by insurance companies, may use mediation as a stalling tactic or a means to undermine the injured party's claim. They aim to exploit the plaintiff's financial strain, hoping to pressure them into accepting inadequate settlements.
We believe in advocating fiercely for our clients' rights, ensuring they receive the compensation they rightfully deserve. Rather than succumbing to the pressures of mediation, we aggressively pursue fair settlements through strategic negotiation and, if necessary, trial.
Don't be misled by empty promises of resolution through mediation. Stand strong with us and fight for the compensation you deserve.
Contact Baxley Maniscalco Injury Attorneys today to schedule a consultation and let us protect your rights and pursue justice on your behalf. Your story deserves to be heard, and we're here to ensure it is.