Originally published by William K. Berenson.
I’ve been representing victims of automobile and truck accidents for the past 36 years and just successfully mediated a major case a few weeks ago. Here are a few tips I’ve learned over the years.
What is mediation?
Mediation is a process by which the parties involved in the lawsuit attempt to come to an out of court agreement. It takes place in a neutral site — usually the mediator’s office — and is far less formal than a trial. Every case is required in Texas to go to mediation.
It is usually conducted after all discovery of facts has been completed and within a month or two of the trial date, but in certain cases can be effectively used before a lawsuit is filed. It can take several hours, all day, and even several days.
How does mediation benefit you?
Mediation has significant advantages over a trial including these:
Time and Money. You can usually resolve your claim quicker through mediation than through litigation. Dallas and Fort Worth courts have backlogs and trials. Trials can be delayed, lengthy, expensive, and stressful.
Control. After consulting with your attorney, you decide how much money you would like to receive. If the case settles, it is over and you will be paid quickly. If you do not resolve your claim at mediation, you can still take your case to a trial and nothing is lost.
Confidentiality. While a trial is public, a mediation is not. Further, the parties can agree to keep the terms of the agreement confidential.
What happens at mediation?
The mediator, a skilled attorney, first meets with both parties and their attorneys to explain the process and feel out each side’s positions.
The parties then separate, if there was a joint opening session (which can be a bad idea) into individual rooms. The mediator meets with you and your attorney and the insurance company and its attorney and representative in separate confidential sessions to learn more about each side’s arguments and goals.
The mediator plays devil’s advocate to address the weaknesses in each side’s case, while not exposing the information divulged by the opposing party. In this way, he forces the parties reach a realistic and acceptable idea of what the lawsuit might be worth in court.
Five biggest mistakes made by lawyers
1. Not fully preparing the client.
Client communication and preparations are crucial. I thoroughly discuss strategy with my client at different points before the mediation day. After consulting jury verdict reports and other attorneys, I discuss the pros and cons of the case and what the range of what I anticipate a jury award might be. We plan three numbers together: our opening demand, desired result, and minimum acceptable figure.
2. Not communicating willingness to take case to the jury
I prepare for mediation almost as though I’m going to trial. Pleadings, depositions, and evidence are highlighted. Photographs, reports, charts, medical records, bills, insurance payments, lost wages, and other evidence are ready to be argued.
3. Not bargaining in good faith
Bargaining successfully and in good faith means knowing when to hold firm and when to compromise. An overly aggressive opening statement or unrealistic demands can hinder the bargaining process and I generally don’t make them.
4. Not mediating at the right time
A key element of strategy is determining when to mediate. We could miss vital evidence if we mediate too soon. For example, in a drunk driving case, we might benefit from waiting for prosecutors to prove guilt in the criminal court and release incriminating evidence. And doctors may need to run more tests or perform surgery.
5. Revealing the bottom line
We enter mediation starting high to allow for negotiating room, but knowing our bottom line. These numbers remain private.
My law firm has been successfully representing injured victims for the past 36 years. Please contact us if you have any questions about your car or truck collision case.
Curated by Texas Bar Today. Follow us on Twitter @texasbartoday.
from Texas Bar Today http://ift.tt/2aUyzFq
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