Mediation is a voluntary process where both sides in a lawsuit make an attempt to settle their case with guidance from a third party mediator. The mediator is specially trained to facilitate communication and make suggestions that can help both sides meet in the middle when it comes to a personal injury settlement.
Prior to mediation, there are various decisions that you will need to make, including whether you should attend the meeting yourself. After all, most people are represented by an attorney, who acts as a liaison between the client and the defendant’s insurance company. Thus, it’s not unreasonable for the client to question whether they should be at the mediation.
Frankly, it’s perfectly normal to see both the plaintiff and their lawyer at these meetings, along with the defendant’s lawyer and the claims rep from the insurance company. The rep’s attendance is crucial, as they have settlement authority, but what about you, as the plaintiff?
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Should Clients be Present at the Mediation?
Based on decades of experience in personal injury law, we would say clients should attend mediation in person if at all possible. First, attendance shows that you are taking this seriously and truly care about the outcome of this process. Second, it gives the insurance adjuster reassurance that you are fully consenting to the settlement if you are successful in reaching a compromise. In fact, some insurance carriers will refuse to participate in mediation without the plaintiff being present.
Here are some other benefits to attending mediation if you are the injured party:
You have a chance to talk to the mediator directly and provide insight on the most critical issues in your case. For example, it gives you a chance to show the specific injuries you’ve suffered, which is crucial if you have catastrophic injuries with long-term complications.
You can receive counsel from the mediator on whether your expectations are realistic or not, based on their communications with the other side.
You feel more in control of the process and are more likely to work towards settling your case once and for all. For most people, this is preferable to taking their chances in court, where they will have no control over the jury’s verdict.
Possible Disruptions at Mediation When the Client Does Not Appear
Obviously, you want to avoid any delays or disruptions that can cause the meeting to go on longer than it should. You also don’t want to leave the meeting with any loose ends, meaning that you may have to have additional meetings. Now, it’s possible that multiple meetings are required if the case is especially complex. But there are times when everything could have been solved on day one, had the client been in attendance.
There are plenty of cases where the lawyers finally hash out an agreement, only to conference in the client and be told that the amount is not good enough. Most skilled mediators can work through the client’s issues and help both sides achieve a settlement. But this is most effective when all the parties are with the mediator face-to-face. Over the phone, whatever skills the mediator has becomes less effective.
What are Some Reasons for Keeping the Client out of Mediation?
In all fairness, we can’t just talk about the benefits of having the client present at a mediation meeting. There are cases where it’s best that the client stays behind the scenes, though they should always be on standby in case they need to be reached by their lawyer (in a separate room or in the lawyer’s office, for example).
As an example, it may be for the best to keep the client out of mediation if they have yet to give a deposition. In that case, the client may not be prepared on how to answer questions and stick to the facts that support their case. Another issue is when a client is represented by a referring attorney, rather than the lawyer that’s been handling their case. Here, you have a lead counsel that’s in charge of your lawsuit (handling attorney), but there may be duties that are passed on to a referral lawyer, like representing the client in mediation. With this type of situation, the client and their handling lawyer wait in a separate location throughout the mediation.
Attendance by the Insurance Adjuster is a Must
While this article is focused on the pros and cons of client attendance at mediation, there is another party that’s crucial to the process: the claims representative, also known as the insurance adjuster. Essentially, this party has been given authority by the insurance company to settle the case.
Plaintiffs and their attorneys should demand that this person attend the meeting. Without their presence, it’s likely that the meeting will experience continued disruptions and delays. This is due to the fact that defense counsel will have to continually check in with the adjuster, who is receiving information second hand as to what’s going on at the meeting.
With the adjuster on site, they can “read the room” based on real-time information, which will improve their ability to negotiate, and hopefully, reach an agreement with the plaintiff. Furthermore, the line of communication between the plaintiff and insurance company is more direct, thereby minimizing the possibility of misunderstandings. That’s why our law firm always insists that someone with settlement authority from the insurance company be present at the mediation.
Preparing Yourself for the Mediation
Preparation is essential to a successful mediation, for both the attorney and their client. When our lawyers prepare for mediation, we ensure that we understand every aspect of the case, the damages involved, degree of liability by the defendant, and other vital issues. We also make sure that we have a full understanding of any medical treatments you are receiving (including mental health counseling), as this will play a critical role in your settlement demands.
As for the client that we are representing, our job is to explain their legal rights and prepare them for the mediation process. We stress that mediation is non-binding, and there is no pressure for them to accept a settlement they are not comfortable with. On the other hand, we set realistic expectations for the client based on the strengths and weaknesses of their case. We also let them know that everything does not need to be resolved in that first meeting. But it’s more than likely that enough progress will be made on that first day, thereby laying the foundation for a settlement down the road.
Guidance from an Experienced Personal Injury Attorney
Mediation is a fast and effective way to settle cases, but that can only happen when both sides are fully prepared and open to the idea of engaging in constructive dialogue. With that in mind, it’s almost always in the client’s interest to attend mediation with their attorney.
Working with an experienced personal injury lawyer will give you the best chance of settling your case, no matter where you are in the legal process. Our law firm is more than ready for the challenge of representing you, so please contact us if you have been injured by another party’s negligence. Alternatively, if you are currently unhappy with how things are going in your case, reach out to us for a free second opinion.
Whether you start a claim with us or wish to continue an existing lawsuit, you pay nothing towards the cost of legal fees under the Zero Fee Guarantee. Our expenses are included in the settlement demands to the defendant, so the only way we get paid is by winning your case.
Our ultimate goal is to fight for your interests and achieve a positive outcome for you and your loved ones. Please give us a call to learn about your rights and legal options during a free consultation.
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