I frequently get asked by clients that if their case does not settle, does that automatically mean that we are faced with filing a lawsuit and litigating the matter? My response is “sometimes, but not always”. Of course, most clients do not like the thought of litigation and the time it takes to reach our “day in court”. Thankfully, there are many well-respected mediators that can be used prior to the filing of the lawsuit. The only reason I say “sometimes” rather than “always” is simply that it takes both sides to agree to mediate the case. Unfortunately, insurance companies do not always wish to mediate prior to filing a lawsuit. Why they take that position is not always clear and perhaps they want to conduct some discovery to get a fuller picture of my client’s injuries and damages.
Assuming the other side agrees to mediation, the idea is to chose a mediator that both sides can trust. Of course, I try to use those whom I know are well-respected by the plaintiff’s bar, the insurance carriers, and the defense bar. This does not mean by any stretch that I will agree to a mediator that will try to “low ball” me. Rather, it is a mediator who can show both sides the economics of litigation as well as the strengths and weaknesses each side possesses with their case. A good mediator is a good communicator and could advise the other side why my case could produce a large verdict based upon certain evidence that I share only with the mediator. Moreover, a good mediator will also advise me of my weaknesses that the other side possesses and has not formally advised me of it. A good mediator has a keen sense and great strategy of getting the insurance carrier to offer more money while at the same time provides me with information that gets me to come down from my original settlement demand. Sometimes a mediation could last the entire day (i.e. 8 hours). However, if those 8 hours are well spent in resolving the case, it certainly a small investment of time compared to the time and money in litigating the case.
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