Burdine & Brown
Is Settlement Mediation Good or Bad for My Case?
Whether you have an automobile accident case or a job injury case and the insurance folks want to have a settlement mediation it is usually a good thing. Timing is everything.
It is not a good thing to engage in a settlement mediation to settle your claim if you are still under medical care. The results of a successful mediation will be that your case is settled and the odds are that you will not be entitled to further medical treatment as the insurance company wants to pay you money to end your case and you will be required to sign a release that will release the insurance company of any further liability in your case. In a workers' compensation case a settlement will most likely also require a resignation from the company you were employed at the time when you were injured.
Usually a settlement mediation takes place at the offices of one of the major mediation office in in the Metro Atlanta area. If you live outside the Metro Atlanta area, sometime the mediator will travel to one of the lawyer's office or somewhere in between.
The mediator is a lawyer and based upon what we know today, most mediators have extensive experience as lawyers in various cases representing either the insurance company, the injured worker or the plaintiff. You can rest assured that the mediators have much experience.
Who picks the mediator? That is between and your lawyer and the insurance company lawyers. Sometimes there are mediators that I believe are fair and impartial but sometimes there are mediators that really do not care much about the case facts. I do not use those of mediators. Your lawyer has to prepare the mediator in advance by giving his/ her the original settlement proposal and the most important medical records.
I was at a mediation in late October 2019, and the mediator told me that very few lawyers sent him advance information about the case. This mediator told me that he needs this information in order to better have a grasp of the facts surrounding the mediation. Why lawyers do not send this information to mediators in advance is beyond me. I believe it is essential for the best representation of my clients. In this case, the mediator turned to my client and told him that I always send the mediator records in advance and that is very helpful. I was pleased to hear this.
What are the odds of settlement at a settlement mediation? I would say that the odds are about 90% that a claim can be settled at a mediation. Again, timing is the most important thing. Mediation is about compromise. Whatever the settlement demand amount that I initially create, I can almost all the time expect that the insurance company will “low ball” it. The purpose of a settlement mediation is to see if all parties can arrive at a mutually agreeable settlement number.
In a workers' compensation claim the mediator will usually have the settlement papers prepared and ready for signature if the parties agree at the end of the day. Mediation is a chance for all parties to focus on the case at hand.
There are times when we just need to walk away from the settlement mediation because the insurance company adjuster and their attorneys are not looking at the real value of the case. There is no harm to walk away from a settlement mediation if the numbers are not right. Walking away or terminating a mediation usually does not affect or change the case at all if there is a failed mediation. However, I have had some instances when the insurance company decided to retaliate for a failed settlement mediation by attempting to petition the court in changing the treating physician. Sometimes this tactic is used by me if we have the evidence to support a change of physician for further medical treatment.
Please keep in mind that settlement is only when the parties are ready to settle in a workers' compensation claim or automobile accident. In an automobile accident case the ultimate arbitrator is a jury. That may take one or two years in order to present the case in front of a jury. In a workers' compensation field, a settlement mediation allows for the case's closure and it allows the client to obtain hopefully sufficient money to have their life back in order, pay past due bills and move forward and obtain a new job or to submit for SSDIB if they are disabled.
The cost of a mediation is usually $300 an hour but it is not difficult at all to have the insurance company agree to pay for this cost therefore making it free for the worker or for the plaintiff to attend. In this case there is nothing to lose but time to prepare for the mediation.
A mediation does allow you, the injured person, to have time to discuss your case with the mediator and present your case to the other side. This is “your day in court” and it is helpful as part of the resolution of your claim/case. An opening statement is usually made by the lawyer representing the injure party. The injured person, if they care to do so, may make an opening statement as well to let the insurance folks know how they feel about the injury, their medical treatment and their ability to recover from the injury and why they would even consider settling their claim. All in all it is a process worthwhile.