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The Art of Mediation When Settling Personal Injury Claims

Many personal injury claims are settled out of court rather than being heard by a jury.  My clients often want to know if their personal injury claim will be mediated, and if so, what exactly will happen at the mediation.  This is how the mediation usually works:  the defense attorney and the plaintiff lawyer get together and choose a third party attorney to help work out a settlement. The attorneys, the insurance adjuster and the plaintiff (the injured person) will meet in a conference room and state their positions.  It is important that each party is made aware of the factual and legal positions of their opponents.

After this initial discussion, the parties will move into separate rooms.   The mediator will meet with the plaintiff and the plaintiff’s lawyer first and obtain information about the settlement demand.  The plaintiff attorney will start with a certain number that leaves room to negotiate. Then the mediator will meet with the defense attorney and adjuster and convey the first settlement offer. The defense will then respond with their own settlement offer. The mediator will go back and forth trying to get the parties to agree on a number somewhere between the high and low offers.

In order to reach a settlement, the plaintiff’s personal injury attorney always must insist that the insurance adjuster will be present at the mediation.  I recently had a mediation conference in Jackson, Mississippi for an industrial injury claim that occurred in Vicksburg. The defense attorney did not tell me that the insurance adjuster would not be present at the mediation. Their initial offer was low and we immediately walked out. The failure to have an adjuster at the meeting means that the defense attorney was not ready to settle the case at that point.

Sometimes it can better to settle a case before trial because you never know what a jury will do, but it is also important that the plaintiff receives an appropriate settlement for their injuries. If a settlement offer is too low, an experienced personal injury lawyer must be prepared to end the mediation and start preparing for trial.