When it comes to choosing mediation to “argue” a Personal Injury related case, there are many advisable reasons to go this route. The choice to use mediation if it suits the case at hand can speed up the legal process, provide a more concise handling of the case, and save some money (although the latter reason should not be the biggest factor when a client’s well-being is at stake).
What’s most important is to heed the advice of an attorney when they’re explaining what may be asked within mediation and fully understanding why, with their experience to guide them, they chose this method of litigation.
Prior to the mediation it’s important to go over any questions the client may have in the event they don’t understand something that may or may not occur. This is where the question of “what if my case doesn’t settle?” can be asked, and the lawyer can provide the best insight he or she has as to what happens should mediation not result in a settlement. And, that’s what this article will touch upon: “my mediation didn’t result in a settlement! What now?”
To better understand why a case may not settle at mediation, it’s important to first understand the ins-and-outs of what purpose mediation actually serves (we discussed this at legnth in Deposition, Mediation, Litigation: What Do They Mean For Your Case?):
Mediation in three steps
- The parties and the mediator have control of where and when the mediation takes place, who will be present during a mediation, and how the mediation is to be financed; many attorneys do not like to utilize the Arbitration method to litigate their cases. While this article is not going to touch on Arbitration, the practice itself is thought by top Personal Injury attorneys to be unfair to the client, and thus is not in their best interest to pursue it.
- Mediation is usually voluntary, and both parties must agree that this is how they will attempt to resolve a legal dispute; however there are occasionally used statutes or court orders that may legally require a person or persons involvement in mediation.
- Mediation is a common practice in personal injury cases and often helps to speed up the process to recovering damages on the client’s behalf after a settlement is reached.
“My case didn’t settle! What now?”
Top attorneys hear this all the time, and they know exactly how to ease their clients’ minds when this occurs. First of all, it’s important to remember that it’s not the end of the world. Insurance companies often play schoolyard bully in an effort not to provide the client with the compensation they know they deserve. This injustice often leads to cases going to court, especially cases which resulted in serious life-threatening injuries such as TBI, wrongful death, or paralysis.
Just because a case doesn’t settle quickly, it doesn’t mean it’s over. Quite the contrary. “Paper pusher” lawyers (those who do the minimum amount for the client to “win” a case) will try to argue this point and they’d be incorrect. Getting a client out the door with a check as quickly as possible cannot be considered a success. An experience, board certified attorney knows they must stay the course, stand behind the client, and at the end of litigation (and trial if necessary) not only will the check be larger, the client will be able to say they received justice and weren’t kicked out the door with the minimum amount done for them.
So, what really happens when a case doesn’t settle at the mediation? This is when everyone involved in the case must be “ready to roll”. The experts (doctors, witnesses, psychologists) must be subpoenaed, depositions are assured to be in order, and because of the “impasse” at mediation, the case will then proceed to trial. There are occasions when the defense will concede the night before, or even the hour before trial and offer a settlement to the plaintiff’s lawyer.
If a settlement is offered before trial, it’s up to the plaintiff and the best advice of their lawyer to accept the offer. No two cases are alike, and while some settlements may be acceptable and trial can be avoided (going to trial is costly and time consuming; expert attorneys know that no matter how exhausting, if it’s best for their client they must try the case in front of a judge), this is not the standard and will not always be the case.
In the following video, Sagi Shaked of the Shaked Law Firm explains what happens when a case doesn’t settle in mediation:
What’s best for one case may not be what’s best for another. The most experienced attorneys know that by staying the course, seeing the case through to the end, and going to trial when necessary they can provide a successful outcome for the client. Not only is this a financial success (large judgements can provide for the client and their family over the course of a lifetime after catastrophic injuries) but this can also be a great emotional and mental success for the victim as well. Knowing the attorney believed in them, stood by them, and in the end were able to provide them not only compensation but justice for their pain and suffering is what’s most important.