Mediation In Florida Personal Injury And Medical Malpractice Cases
In a Florida personal injury or medical malpractice case, you will eventually be ordered by the court to attend a mediation. At mediation, a “neutral” third party will attempt to see if there is some middle ground to compromise and possibly reach a settlement. In most cases, the mediation is the single day in the entire case where the chances of reaching a settlement are the highest.
What Is Mediation?
Most attorneys, including mediators themselves, will only talk about mediation in very general terms. What they don’t tell you is that at a mediation for a personal injury case, the insurance company is hoping that they can get your bottom line down below what they are willing to pay and the mediator will help them do that.
The goal of the insurance company is to use the moves that you make procured by the mediator to figure out what you will ultimately accept and then offer you an amount just under what you are willing to accept (assuming that your settlement range is on their field of play).
This is why you really don’t want to be the first to lay down your cards at a mediation if you can help it.
Turn The Table On The Insurance Company
When you have an attorney representing you at a mediation, your attorney’s goal is to turn the table on the insurance company so that you figure out the maximum amount that they brought to the mediation. Please know that this is only sometimes possible. Once you have figured out what the insurance company wants to pay, your attorney then hopes to drive a hard bargain with the insurance company by demanding more than what they are willing to pay (again, assuming the same overlap described above).
This is exactly what the insurance company does not want you to do with their bottom line. Some insurance companies will stand on their bottom lines while others will consider the “voice of reason.” There is great value in getting the insurance company to show its cards first if you can get them to do that. Very few insurance companies will deal straight with you.
The Psychology Of The Game
I wish that it wasn’t so, but every mediation involving a significant dollar figure ($250,000 or more) involves a great deal of psychology to get a final number that is real. At small mediations, the adjuster walks in with a pre-determined number (usually) and it is just a matter of playing along to get to that number and then deciding whether that number is enough to settle your case
When there is more money on the table, the insurance company only sends a representative who will do anything and everything they can to get you to think that your own case has less value. They do this in several ways.
They first give you a series of lowball offers to see if you will blurt out a number that you will take in front of the mediator. Once you blurt that number out, there is no taking it back, even if you instruct the mediator to keep it confidential.
It Can Seem Like Forever
The second thing that they do in every “large dollar” mediation is take forever in between rounds and stay very low until it’s almost time to leave. Keep in mind that the insurance company is never going to be in a hurry to pay you money. They will try to sidetrack you by saying things like they have a plane to catch or another meeting to go to.
Don’t be fooled by these tactics because they do it in every case. For that matter, the adjuster probably showed up late just to take burn time off the clock. These are some of the oldest tricks in the book. If they are sincere about wanting to get the case settled (sometimes they are not), they will not walk out of the mediation until they have offered you the full amount that they brought with them.
If you want significant money on your case, you have to be prepared to let them walk. If they walk, then it means that your case probably should be tried because you see the case differently than the insurance company. On the other hand, many mediations continue on well after dark after you’ve heard the “I’ve got a plane to catch” line.
Patience Is A Virtue
As a plaintiff, you need to be patient and let the mediator make his rounds. Mediation is often a war of attrition. The defense takes forever in between moves because they want to wear you down. Once you are worn down, then you are likely to take less money and they know it.
If you want to get the maximum dollar on your case, you have to plan to be there all day and sometimes into the night. I recommend that you bring whatever you think you might need to stay comfortable (jacket, snacks, something to drink, etc.) because you will need it. No case gets settled in the first round, and usually not in rounds two or three either.
Make The Smart Money Moves
You have to think hard about what your “bottom line” really is and why it is your bottom line. While we do the math for our clients, only the client decides what the actual bottom line is. It is the client’s decision and not the lawyer’s. Your bottom line number should make sense in the context of the case. While there may be a number that you have picked out in your mind that would settle the case, your number might be too high or too low.
This is where experience kicks in. For certain types of cases, you need to take your case to trial because the insurance company will never pay your asking price or what you really should get. Rather than make moves all day before disclosing your bottom line, a smart move would be to try to “bracket.” This means that you will make a move to a certain number but only if the insurance company is willing to pay at least a certain number. If the bracket is accepted, then you only negotiate between the two numbers.
A bracket will rarely be accepted but, if you get a bracket in return, then you learn a lot about how the insurance company views your case. This is a way of testing the waters before you give out your bottom line. Once you give out your bottom line number, the mediation is over unless you are willing to go lower, but by then you have already lost the war.
An attorney can help keep things going the right direction.
Your Attorney Is Your Guide
Mediation is a process by which you find out what the other side thinks by slowly unraveling each other’s case with each round. There is no crystal ball to tell you where the insurance company is going to land. Most cases end up settling at mediation but not all do.
Whether you should settle or not is something that needs to be deeply explored between you and your personal injury attorney. We represent clients with personal injury and medical malpractice cases in Polk County including Lakeland, Winter Haven, Bartow, and Haines City, Florida.