Personal Injury Mediation

Personal Injury Mediation & Negotiation
BCS Mediation & Negotiation

If you are the victim of a personal injury due to someone’s negligent, reckless, or intentional behavior, you may bring a claim against that person, who may involve his or her insurance company to potentially pay your claim.

Many people hire lawyers, as do the insurance companies involved. Frequently, these lawyers hire a mediator/negotiator to resolve the settlement before trial – – sometimes before a lawsuit is filed.

Hiring an experienced, skillful mediator can save time and money, allowing you to get your settlement as quickly as possible. Otherwise, you might be involved in protracted litigation that could take months or even years to settle.

  • Types of personal injury cases:
  • Vehicle accidents
  • Unclean water.
  • Land hazards.
  • Medical malpractice.
  • Workplace accidents.
  • Products liability.
  • Dangerous drugs.
  • Airplane accidents.
  • Wrongful deaths.
  • Defamation/Slander/Libel.

What is mediation?
Mediation is a private, confidential, non-adversarial negotiation process that is used to resolve differences or disputes that is conducted by an impartial party, a mediator, with the purpose of bringing about a mutually acceptable resolution and settlement. The purpose is to help people communicate with one another, to understand each other and to reach an agreement that satisfies everyone’s needs and preferences. It is an alternative to going to trial that will save time and money. In mediation, there is no judge or jury that will make decisions. Instead, the parties involved make the agreements. Mediation is a form of Alternative Dispute Resolution (ADR) and can be utilized in many legal disputes, including personal injury of all types such as medical malpractice, dog bites, slip and fall, car crashes, truck wrecks, business disputes, and other injuries, if both parties agree to discuss the issues.

What is a mediator?
A mediator is an impartial and neutral professional who has undergone specific training in assisting conflicting parties to reach agreements and find solutions that work. Mediators will not and cannot make decisions for the conflicting parities, but they can help parties understand the legal, financial, and other ramifications of their proposed agreements. Their job is to help both sides of a dispute figure out how to get their needs met by reaching voluntary, creative and customized solutions that work for everyone. Mediators in California are professionals that have gone through specific conflict resolution or mediation training. In a personal injury case, the mediator used is agreed upon by both attorneys or both parties if attorneys have not yet been hired.

When is mediation used in a personal injury case?
If negotiations between an accident victim’s personal injury attorney or the accident victim himself and the insurance company fail to reach an agreeable settlement after negotiations, a lawsuit is then filed. In short, this means that the insurance company’s highest offer has been rejected by the client and the next phase of the legal process is begun. Filing a lawsuit means that the case will be scheduled to be presented and argued in a trial in front of a judge and jury to decide what is just. Mediation is a voluntary process. However, most all personal injury cases will be ordered by the judge to undergo mediation or the parties themselves will realize that mediation is a good option and worth the time. In that case, the parties choose mediation from the very beginning of the process or as soon as possible after a case has been filed. Mediation can be utilized at any time during an injury case, not just before or after a lawsuit has been filed.

How does mediation work?
“Old Style”

Generally, mediation takes place in a conference room at the mediator’s office where both sides present their case in a safe, confidential, and controlled environment. In mediation, both the injured person (Plaintiff) and the party allegedly at fault for the accident (Defendant), are present alone or with their lawyers. There may be insurance company adjusters in the room as well. Mediation begins with an orientation session given by the mediator in which the mediation process and rules are explained. Then, both sides explain their side of the case, without interruption, which can include their evidence. After this is completed the mediator will usually have one party stay in the mediation conference room and the other go to a private office. The mediator’s job at this point is to go back and forth from one party or room to the other and try to negotiate the case to reach a settlement. Not only will offers be made by each party towards settlement but they can also explain in detail to the mediator things that may help achieve a more favorable settlement for their side. If the participants reach an agreement in mediation, they will sign a written settlement document which is an enforceable contract.

How BCS Mediation & Negotiation Works
“Our Innovative Way”

At BCS Mediation & Negotiation, we have innovative approaches to personal injury mediation that involve convenience and communications technology. We never schedule both parties to meet face to face in a conference room. The reason for this is that we have learned that this causes greater levels of anxiety and aggression, which can impede settlement efforts. Instead, we meet parties individually and probe into their needs, desires, settlement range, and all other relevant factors. We also use communication technologies such as Skype, Zoom, WebEx, and Facetime, so that the parties do not have to drive to meet us. This saves time and money, which is at the forefront of our mission. We also use standardized analyses of the value of various losses, the common law, related statutes, game theory, psychoanalysis, and first-rate mediation and negotiation theory to help both parties come to a win-win resolution, so that they can move forward with dispersal of the settlement money. Again, we save time, money, and stress.

Additional Points
There are additional items that are helpful to understand in personal injury mediation.

First, Confidentiality.
As a basic rule, everything that is said in the personal injury mediation is confidential and cannot be used in court. The defense attorney can’t cross-examine a party at trial and ask, “Didn’t you say at mediation . . .” However, if a party reveals a new treating doctor or another witness at mediation, the defense can obtain information from them. A helpful distinction is that while statements themselves can’t be used against a party, the information in those statements may. Generally, any fact that is relevant or probative to the case is discoverable and cannot be hidden.

Second, Impartiality.
The mediator does not take sides and will not give either side legal advice about their case. The mediator’s job is not to determine a winner or loser, but merely to facilitate communication between the two sides and help the two sides reach a settlement. He or she may play devil’s advocate while alone with each side to help them see the other’s point of view. However, in the interest of justice, fairness, and good mediation, a competent mediator can discuss relevant principles and laws to the parties without giving legal advice. Remember, the parties can always seek independent third-party legal and accounting advice elsewhere.

Third, Risk factors.
The purpose of mediation is to allow each side to fully explore the risk factors that affect their case. This will be the only opportunity that each of the parties’ attorneys will have to point out the risks facing the other side directly to the opposing party.

Fourth. Compromise.
To settle the case, each side will have to compromise. Neither party rarely receives everything that he or she wants from the case or that could be won at trial. The defendant does not expect you to walk out empty handed, either, as you would if you lost at trial. Somewhere between a win a solid win at trial or a solid loss at trial lies a settlement figure both sides can live with. The point of mediation is to see if both sides can agree on that number. There are always mixed feelings that accompany compromise that are based on the loss one feels in not getting an idealized solution.

Fifth, Closure.
If the parties settle the case at mediation, the Plaintiff will get her or his money in about a month or so, depending on medical liens which need to be resolved. If the parties do not settle their case in mediation, the Plaintiff could end up waiting months and sometimes years before getting paid, assuming the Plaintiff wins at trial. A good mediated settlement avoids the stresses of a lawsuit and allows a Plaintiff to get on with his or her life.

Sixth, Control.
At personal injury mediation mediation, the parties control the outcome of the case. At trial, the jury will. Jury trials have uncertain outcomes under the best of circumstances. The same case tried before two different juries can have two completely different outcomes. In fact, this has happened, when a jury verdict is overturned on appeal and a case is re-tried before a different jury.

What are the advantages to personal injury mediation?
Mediation can help protect the parties’ privacy since it is a confidential process, unlike courtroom proceedings which are open to the public.

If the parties decide to not settle their case in mediation, neither the mediator nor the participants can testify in court about what happened or was said during personal injury mediation.

If the parties agree to settle their case at mediation the Plaintiff will usually get the insurance company’s check within 2 to 3 weeks and the lawsuit will be dismissed.

In mediation, the parties involved make the decision not a third person such as a mediator, judge or jury.

If the parties do not reach an agreement in mediation, they can still have the case decided by a jury or resolved in some other way.

Having the case decided in mediation often results in lower attorney fees and costs.

One of the main advantages to coming to a settlement in mediation is that once the agreement is reached, life can go on and the Plaintiff can make autonomous plans, thereby avoiding the stress and uncertainty involved in a drawn-out lawsuit that can take years.

If you choose BCS Mediation & Negotiation, your personal injury mediation has the best chance for success.
Since mediation is a voluntary process there are few if any disadvantages. It is quicker than litigation, efficient, communicative, and convenient. The Plaintiff has control over the settlement negotiations and he or she can always seek litigation if mediation is unsuccessful. It is always a good step, especially if the parties choose a highly-skilled, experienced mediator-negotiator.

At BCS Mediation & Negotiation, we have the expertise and experience to maximize chances for an efficient, fair, and less stressful resolution than if litigation ensues. If the parties are already in litigation, we can often shorten the duration of continued negotiations. We have a team approach to personal injury mediation, and all our mediator-negotiators are trained in the legal, psychological, and financial aspects of alternative dispute resolution.

Please call Senior Mediator, Nazarita Goldhammer, or Senior Mediator, Kevin Boileau, to get a free consultation.