Can Mediation Get You a Better Settlement?

Teresa: Hi everyone. I'm here with Andrew today and we're going to be discussing mediations. What it is, what to look out for, how to prepare yourself, how your lawyer should be preparing you, and different strategies that are used both by your lawyer and the other side, so you have an idea what you're walking into.
What is Mediation?
Andrew: Pretty much any injury claim, if it's in litigation, at some point we'll have a mediation. Now, depending on the jurisdiction you're in, some jurisdictions require mediation. That means you must have a mediation before you can go to trial. But even in jurisdictions where it's not mandatory, it has become the norm.
I think to start, we should explain to people what a mediation is. 
Teresa: Yes. So a mediation is a part of what we call an ADR alternative dispute resolution. And it is, like you were saying, the most common tool that we use. And it's a place where you have a non partial third party that will mediate. You'll have your own lawyer and you'll have the opposing side as well come to the table. They're going to have an amount in their heads about what they believe the file is worth, and essentially it's negotiation. We go back and forth discussing our first offer, second offer. And the job of the mediator, if they're good, is to essentially tell the other side why their file or their case is bad.
And the same thing for us. And as lawyers, what's important for us is to determine what part is an exaggeration and what part we can take away for our file thinking, you know what, that is a hole that we can address further down the line. So even though mediation a lot of people think is just a place for settlement, it's also a place where we understand our file through the eyes of the adjuster, the eyes of the insurance company, and that's really valuable input that you will not be able to have in a different setting.
What's My Role and What to Expect in Mediation
Andrew: For prospective clients that might be facing a mediation, wondering what their role is and what it's going to look like. I generally explain to clients, you know, mediation, you're gonna attend with your lawyer. Okay so if you're a plaintiff, you're the injured party or the family of an injured party, you and your lawyer will attend. And the good news is you're not gonna be examined, you're not gonna be asked questions, you're not gonna be forced to undergo any medical assessment. Really, you don't have to say much to the other side. You'll have the opportunity throughout the day to speak to your lawyer, but there won't be that sort of pressure similar to a deposition or something like that.
On the other side of the case, the defense lawyer, typically a representative of the insurance company, an insurance adjuster will attend. In the context of personal injury cases where there is insurance on the opposite side of the case, it's extremely rare that the actual defendant or the at-fault party attends. It's usually just the insurance company and the insurance company's lawyer on the other side. The mediator, as Teresa mentioned, is the impartial middleman or middle person that tries to facilitate the dialogue or the discussion between the two parties to try to get them to come to a consensus on value, and if they can reach an agreement on the value of the case, will settle.
Why Do Lawyers Use Mediators?
Andrew: The reason why we use mediators as opposed to just sitting around a boardroom table is because negotiations get heated. Both sides are invested, and have a strong view typically of their case. Believe in it. If you negotiate with that kind of emotion, sometimes it forces people to stand up and walk away. Get offended. Yes. argue, which really doesn't facilitate getting to the objective. The good news is, apart from brief opening introductions where each side gets to present their theory of the case, the majority of the mediation, the lawyer and their clients are alone. 
So if Teresa and I are mediating on behalf of one of our clients or attending mediation with one of our clients. It'll be the two of us and our client in a conference room. Or if our client's unable to attend in person by Zoom. And it's just us and we can get emotional, our client can get emotional, we could get angry, we could say whatever we want and no one in the other room is gonna hear it. And in fact, we'll bring the mediator in, we'll tell the mediator, they're wrong, they missed this, they missed that. They don't know the facts of the case. They haven't read the medical records. They must have not looked at the police report or the witness statements and explained our point of view. But the good news is, no matter how heated we become with the mediator, a good mediator will walk out that door, exit our room, walk down to the defense room, and very politely and comfortably be able to articulate those points.
Without any of the emotion attached and say, well, have you considered this? And sometimes the mediator may not even say it came from the other room. The mediator could say, you know, I read the records. Have you considered this or have you considered that point of view? 
And so that's the whole idea is that you keep the parties there. The mediator will go back and forth between the two rooms, or if there are more parties between the various rooms, we may make a demand for a certain amount of money. Then the defense responds and the mediator will walk in and tell us what it is. 
Teresa: We also provide the mediator with a brief, so they will have all the information.
Both our side and the defendants will go ahead and basically outline the strengths of their case, and the mediator is actually able to, you know, read both and determine on their own. Generally the mediators are lawyers themselves or or lawyers who have since retired practicing and just do a mediation practice so they know exactly what to look for. They know when a file is strong. They know when a lawyer is lying or perhaps may not know the law, and they're able to level set the playing field more than we could because like you said, people can get very emotional.
It's easy to see the opponent as the enemy, whereas a third non partial party will not see it that way. And more of, okay, let's get this done. Let's get this file settled and let's come to a resolution that's beneficial for both parties. 
Importance of Mediation Briefs
Andrew: Yeah, and you mentioned something actually important, which is the documents or the mediation brief or memos that get served in advance of the mediation. So how important are those documents to the ultimate success for, outcome of the mediation, do you think? 
Teresa: It's I think one of the most important things. You can have a great mediator and you can have great lawyers on both sides, but if you don't have a brief that details the strength of your case or even what the case is about, there's really nothing to negotiate.
During a mediation, you have an opening, which, you know, both lawyers will do. It's a very short synopsis of what your file is, what happened in the accident, et cetera. However, it's just not going to be enough. The brief is an opportunity where we bring to the table. Our firm is very detailed in our briefs. We talk about every single doctor's notes and diagnosis, and we really show that we know our stuff. So it's an opportunity not only to show the mediator what happened in our file or what is going on in our file, it's also an opportunity for us to show the defendants, hey, we know our stuff. We know what this file is worth, and we're ready and willing to put up a fight if it goes that way, and if the file does not settle.
Andrew: Yeah, good point. 
Defense Perspective on Mediation
Andrew: Now, both you and I also have the experience of being on the defense side in our past practice. You, more recently than me. Share a little bit about how that information is used by the defense. Why it's important to really prepare good materials in advance of the mediation and how that's used in the defense camp with the insurance company, with the defense attorney to help put them in a position to bring enough money, essentially, to get the case settled.
Teresa: So it's actually quite an art I would say, mediation briefs. And this is why I say that. As a, you know, insurance defense lawyer, if I got a mediation brief that was 600 pages, I would think this person doesn't know anything about the file. This is lazy, it's sloppy. And I'm going to just walk all over you, essentially speaking.
Yeah. Like I'll read the actual substantive part, and I'll say, don't worry about this one. Because if you know your file, you would be able to hand select the very important strong matters, the medical records that are important, the reports that are actually meaningful, and you wouldn't try to bombard me with all this information.
Also, keep in mind, that looks really bad for the mediator because even though there were. It's supposed to be non partial. If you give me 600 pages to read, you know, two days before the mediation, I'm going to be a little bit disappointed in your conduct and also disappointed in your work ethic. Because it is sloppy and lazy.
The other side is if you know I get a mediation brief and it's two pages, think the same thing. Why would I come to the table or why would I get my client to bring more money than necessary? When I know you don't know the file. It's really easy to give a bad impression of yourself even before the mediation actually starts.
From my end, if I saw a well put together mediation brief, which for example would be detailing again, you know, the different conditions, the symptoms, what has happened in their lives since, how this accident has impacted them, and also specifically the codes of the diagnoses, the symptoms. Then I feel okay, they know what they're doing and I'm gonna tell my adjuster, listen, we need to come to the table because trial may be actually risky for us. So then we're able to bring a little bit more to the table to make sure that we're able to settle as opposed to drag this on if I know that your case is soft or you don't know the case.
Andrew: So it shows preparedness. It shows the level of basic preparedness and the work product of that lawyer. Which gives you some insight into how they will be as a trial attorney as well. 
Teresa: It actually speaks volumes to the firm. A lot of lawyers don't understand that your reputation as a lawyer follows the firm as well.
So if I was working with a lawyer, a personal injury lawyer, and they were always settling and always taking the low ball offers, I'm going to think, well, in the future when I have you, I'm only gonna give you low ball offers and even lower than I've given you. And also I'm going to assume your firm is also training their employees to do the same. Now for the rest of the files that you have with me, I'm going to low ball you. more and more. So it's very important that you don't establish that kind of reputation because it will follow you, and not only that, it will follow the law firm. 
Andrew: Yeah, that's a good point.
Client Preparation for Mediation
Andrew: One of the things that I like to tell clients is the whole mediation in my view, is really built for insurance companies. It's built to save insurance companies money and is built to close files at less expense to them. Really to let them get away with paying less. That's just my perception. I don't know if that's a fact, but that's my perception. And I see mediators use phrases like success attached to settling and failure or the mediation has failed where the case is not closed, at the end of the mediation. 
When I'm preparing a client to attend mediation, the first thing I wanna tell them is that the mediation is not the negotiation. It's not like, Hey, we're going there to write a test, and we're either gonna fail if we don't settle or pass, or succeed if we settle. It's not ‘the’ negotiation. It's simply a part of the negotiation. The negotiation is the entirety of the case. You're negotiating all the way up until you walk into that courtroom and you start trial. 
That's always the mindset I'd like my clients to be in. We're not going there to settle. We're not going there to chase a settlement. We're going there to present your case in the light that we believe is fair, reasonable. The numbers we ask for, meaning the amount of money we ask the insurance company to pay you is going to be supported by facts, by evidence, by rationale. We're gonna present that to the mediator. Then we're gonna listen. We're gonna listen to what they come back with. We're gonna listen to the message. We're gonna try to use it as an opportunity to find out why they're only offering what they're offering if it's not what we're asking for. Why, what's the rationale? Where's the weakness? It's an excellent opportunity to hear what they think is wrong with your case.
And I love the fact that defense lawyers like to talk because it gives me an opportunity to learn, okay, that's what you think is wrong with my case, that's not so bad. Most of the time it's not so bad and I leave there feeling more confident about the case because I know what's still left to develop and where I can get the information or the evidence to reinforce those, what I'll call perceived weaknesses. Okay. They think we're weak on that part of the case.
It's really important to me that the client goes into the mediation with the mindset that it may settle. If it settles fine, at the end of the day, at the end of the process, we will know the most amount of money that the insurance company is willing to pay on that particular day, period. Doesn't mean that's all your case is worth. It means that's how much money they're willing to pay on that particular day. And if it's enough, if it makes sense, they'll settle their case. And if it doesn't, then we don't settle the case. 
Teresa: You know, the idea of walking away may sound scary to a lot of clients. I'm sure they're tired and you know, a lot of clients come to us and say, Hey, I'm just, I just want this over and done with. But I think the best way to walk into mediation as a lawyer, and you should be confident in that if your lawyer is willing to walk away, it's a really good sign because that means they're prepared. They're willing to fight with you for you, and also it's a great opportunity, like you were saying in a mediation to see where the holes are. 
I agree with you. It's not really about negotiations, it's about understanding your file even better from the eyes of the adjuster and also what we can do then as your lawyer to strengthen your file.
Also, it's a really interesting thing you say that the mediations are technically tailored for the insurance companies. It really is, and I feel. There are times where insurance companies will purposely, you know, schedule a mediation early to catch you off guard, to exhaust you to beat you down, and that's why it's important to have a lawyer that's willing to put their foot down and say, no, we're actually gonna walk away if you're not willing to come on a good faith basis. And we have no fear in that because the real damage is done when you take a settlement and it's not what the file is worth. Your client deserves the full amount and your fear of trial and your fear of what the mediator will call failure in walking away from mediation should not stop you from advocating for your client fully.
Oftentimes, it's an opportunity for us to, you know, nail the medicals, nail the liability after the fact. So we're walking away actually with more value than the settlement itself. Now we have tools to help you get the settlement that you actually deserve. 
Andrew: Yeah, that's good. And you said something, a good point I think. Also for clients out there, you know, they could feel somewhat defeated if their case doesn't settle at mediation, but if your lawyer is willing to walk away, that should give you confidence. That means your lawyer continues to believe in your case, continues to believe in their ability to tell your story, to get you more money. 
Teresa: And they wouldn't work for you.
Andrew: That's right. 
Teresa: More work when we walk away, but we want to do it because we know there's more there. 
Andrew: Yeah, that's right. Whereas if the lawyer says, we have to take it, it's the best offer of the day. Maybe it’s a lawyer that just has less confidence in your case. 
Yeah. Good point. Good point. So don't feel defeated if your lawyer's telling you, let's walk away. In fact, that should embolden you. That should give you more confidence that your case has merit and it's worth more. 
Teresa: Exactly. 
Andrew: Yeah. Yeah. I like that perspective. I'm gonna use that really good way of looking at it. 
How Do Lawyers Prepare Their Clients For Mediation
Andrew: How do you prepare your client for mediation? 
Teresa: I like to level set their expectations. I first say, you know, this is an opportunity for both parties to come to the table and I tell them the role of the mediator and they may be hearing hard stuff such as the mediator saying, you know, there's an issue here in your file and here, but let them know it's actually a benefit for us. So don't get discouraged.
I tell them that it's very possible that the other side may come up with nothing or a very insulting offer. And I like to tell them, you know, it's because it's a possibility. I wanna level set you. However, we're not gonna take it. As your lawyer, I'm here for a reason and my job is to advocate for you. And if I feel like an offer is disrespectful, we're going to walk away. Again that's an opportunity for us to build the file.
I also tell them, you know, of course we'll take their instructions, however we'll refer to them in terms of our offers. We'll give you an idea of how much we believe the offer should be. Yes. The first, second, third, however long it goes. But we'll also get their insight. 
It's a great process of cooperating and understanding where your client really is and their motivations, and must also discuss with them what we think is viable and what we don't think is viable. So it's very important to give them hope, yes, it may settle, they may come to the table with a really great offer and it'll be a perfect opportunity to end this and you can just move on with your life and heal. But also, it's a possibility where they may try to wear you down. And I think most of the time, insurance companies will try to wear you down and I make that clear. So when they hear something they didn't wanna hear, they're not set off by it. 
Andrew: Yes. Another important point is that we always wanna tell our clients, you know, you don't have to dress like you're gonna a wedding or you know, anything like that, but have respect for the process so dress respectfully. I don't want them overdressed, but I want them looking like they're going for a job interview or something like that. 
I generally encourage clients to bring someone with them, someone they trust, a family member, a spouse, a close friend. Because I think that's important during the mediation to also have somebody there in case they want to talk to someone or get some air.
Teresa: That's a good point. It could be an emotionally taxing process. We try our best, of course, and generally the defense lawyer is kind and patient, but you really don't know until you get to the mediation. You know, a lawyer who was acting very collegial with you on the phone could act completely differently in front of their client, which is the adjuster.
Another thing is, yes, be aware of your surroundings. A lot of the times the clients will be on Zoom and they'll be in public walking around. There's gonna be people around and it's very distracting. But also in the back of your mind, it does discredit you. We make sure that we, say, you know, be in a quiet room.
Make sure there is nobody actively walking around or talking to you and dress appropriately. You want to put your best foot forward and you wanna show the insurance company that you are human. The whole idea is humanizing you. And if you could help us with that, that is the only thing we really ask.
Andrew: That's right. And poker face. Yes. I always tell clients when we're alone, you can be open and share your thoughts, but don't reveal too much to the mediator, certainly not to the other side. They're always assessing you. They're looking at how you react to difficult information. If you get your backup and you look angry, then they start to think you may not present well as a witness at trial.
And then they, that's leverage. They offer less money. 
Teresa: From the insurance perspective, we, you know, we write memos after the fact, and a large portion of what I would write is exactly that, how I believe that client would be as a witness. Were they aggressive with us? Were they angry and yelling and couldn't take instructions from their own lawyer? For us that's all good. If I see that you are going to be very triggered at even the smallest things, you are not gonna be very likable in front of a jury. And I'm gonna take that into consideration when and if I make the next offer outside of a mediation or I just wanna push it all the way through to a hearing because I'm thinking this person is not gonna do very well.
And that's a really good opportunity for me to low ball you.. 
Andrew: Yeah. When you were a defense lawyer. 
Teresa: When I was a defense lawyer. 
Andrew: Now you're a plaintiff's lawyer, but you use that to educate the clients to make sure they don't make those mistakes. 
Teresa: No, absolutely. I think my practice area of being in insurance prior has really helped me. It's honestly very different being on the plaintiff side, but all the little tricks and things that we used to do in insurance defense, I now can look out for. So when a lawyer is speaking with me and they use their terminology and certain tactics that I'm used to. For me, a red flag goes off my head and I'm either able to shut it down or use it against them, which has been, you know, really invaluable.
Choosing the Right Mediator
Andrew: What about choosing a mediator? Anything that you look for in a good mediator? 
Teresa: For me, a good mediator is someone who's practice law for a really long time. That's for me, indicative of the fact that they know the law. They know what to look out for the, what the strengths are. You tend to use the same mediator over and over again because you build trust with them. So it's a really good sign if your lawyer knows a mediator because it streamlines the process really quickly and they're very earnest and honest with you. Whereas if you're a new lawyer and you don't know the mediator, there's a lot of little professionalism that goes into it but I think the beauty of having a mediator that you know is just they give it to you straight. There's no dilly dallying. It makes the process really quick and really simple, and you are able to understand the other side a lot better because you're not trying to hide it, hide the other side's, you know, position with niceties. And things can get very confusing with niceties. 
However, I generally like the insurance companies to choose their mediators, just because I'm very confident when I go to mediation, I prepare like it's a hearing, so I know my stuff. I'm not concerned the mediator's going to be, you know, leaning more towards the insurance provider because I already know they are. That has already been in my calculation. So if for whatever reason they choose that mediator and they feel more comfortable and more open with us, I see that as an upper hand as opposed to, you know, giving up something.
Andrew: It's funny you say that. I agree with that a hundred percent. Yeah. I'm the same way too. Yeah. I don't, I don't really fight too much about the mediator if the insurance company has someone in mind that it's gonna make them feel good, then we'll use that person because at the end of the day, it's not gonna really change my strategy and my view of the case. 
Teresa: Yeah, the facts are the facts. Yeah. The work is the work, the brief is the brief. A mediator is really not gonna change that. 
Andrew: But with that said, there are mediators I prefer, of course, over others. I just think they're more effective. But, I will try to suggest them when given the opportunity. But if the insurance company really digs in and has a mediator in mind, it's rarely ever a contentious issue for me, I'll let them choose. 
Teresa: For sure. Of course I'll have my input. Yeah. But if they're really set on one mediator or two, I'm not going to say no and just it's not the fight. I think at that level of negotiations, you have to pick your battles. That's not a battle I need to pick because it also may weaken your position or their view on your position. They may question why they need this specific mediator? Maybe, you know, their fall is weaker than they think or, et cetera. So it's just not a battle that's worth fighting. 
Andrew: Yeah, I agree.
Post-Mediation Considerations
Andrew: So a common question, we get near the end of a mediation when we're suggesting let's walk away and there's an offer on the table from the insurance company or the defendant. Our clients will say, okay well if I follow your advice and I walk away, what if I changed my mind next week? Or next month? Can I still get the money that they're offering?
Unless there's an agreement to keep the offer open, which I don't like to do personally, and I'll explain why. But unless there's an agreement to keep the offer open, technically if it doesn't settle a mediation, all offers exchanged are off the table. Practically speaking, it's been my experience that if they've offered a certain sum of money outta mediation. If you call them back later within a reasonable amount of time, unless some major new evidence emerges in the case, that changes the case. Practically speaking, you can, you can still get that offer. That's been my experience. 
Teresa: I agree with you. I mean, ultimately there's no guarantee that the offer will still exist, but obviously that's how they value the file and probably less than they value the file. So it'll still be a good business decision for them to take it. But also, keep in mind, your lawyer walked away because we believe there's more on the table. 
Andrew: That's right. Right. That's the most important thing. Yeah. 
Teresa: There's a reason we walked away from that settlement value. And they also know that. Of course there's no guarantee, but it still puts us in a better position, again, depending on what happened between the mediation to when we go back and ask them if that offer still exists, we may have gotten better information, better medicals, and you know, strengthened your case and maybe we can even ask for a little bit more. 
Andrew: Well, that's the whole reason, right? If we walked away, it's because we didn't believe it was enough money. 
Teresa: Exactly. 
Andrew: And we believe it's worth more. And so then our mission, our goal becomes to continue to educate the insurance company and their lawyer as to why our offer makes sense and why they should pay it. 
Teresa: The beauty is you really can negotiate up until the hearing, so there's no fear, even during trial, there's no fear in the fact that you're giving up your rights to settle, you're really not. I think it is just one specific tool that you could use to settle, but there are a plethora of ways that we can really get the file settled for you if that's what you want. 
Something as simple as getting on the phone with opposing counsel and saying, listen, let's just settle this file, et cetera. It can be as informal as that, or something like a formal settlement offer. You know, your lawyers will work with you, we will work with you alongside, and we'll get your instructions, ask you questions. Whatever you like, we will do with our advice on what we believe is correct, but we'll always follow suit, in terms of what our clients need.
Andrew: That's right. At the end of the day, it is the client's file. Exactly. Client's case. 
Have Questions? Contact Us Today!
Teresa: Thank you so much for tuning in today. I hope we gave you a good insight into what mediation is and what I want you to take away is that mediation is not something scary. It's quite exciting. It's basically signaling to you that your file is well on its way and is an opportunity, even if it doesn't settle, to look into the minds of the insurance defense company, and an opportunity then for you and your lawyer to build your file up. To bridge the gap, to fill in the holes to make sure that you get the best settlement that you deserve and the full value of what your file is worth.
Andrew: If you've got any questions, reach out to us. Our contact details are located in the show notes below. 
Teresa: If this video was helpful for you, please like and subscribe as we'll be doing a lot more content on a variety of topics.

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