In a contemporary legal practice, a significant number of civil cases are resolved through mediation. Mediation can often prove advantageous to the plaintiff, but there are disadvantages as well. While mediation does mitigate the inherent risks in a case, our experience tells us that using mediation without the risk associated with an unfavorable outcome can help clients to emotionally deal with closure. When both parties feel they could not have negotiated a better outcome had they elected to litigate, it typically indicates a fair settlement has been achieved.
While mediation does offer benefits, there are drawbacks to consider. Insurance companies have substantial resources and deep pockets. Sometimes, mediation allows an insurance company an opportunity to offer settlements that are enticing in order to encourage a plaintiff to accept what appears to be a good offer without fully evaluating that offer. Some plaintiffs may simply want to avoid risk, but they could be leaving money on the table. Never enter mediation with a ‘number’ in mind. Listen to what the other side has to say with respect to their evaluation of your claim, but equally, if not more importantly, listen to your lawyer’s recommendations and evaluation of the pros and cons of an acceptance or rejection of any offer.
Many people assume that mediation is cheaper and faster than litigation. Although litigation is costly, preparing a case for settlement or mediation can also incur significant expense. Law firms often accept personal injury cases on a contingency basis, as commonly seen in television advertisements with the slogan ‘we don’t get paid until you get paid.’Some law firms, particularly those without significant financial reserves, might hesitate to walk away from a settlement offer. If you have the right lawyer and that lawyer suggests that you walk away and reject an offer– you probably should walk away…. that last offer will likely still be around later. Your lawyer should never prepare your case with settlement in mind. Always select a lawyer or law firm that prepares your case for trial. When you prepare a case for trial, you can always settle or mediate along the way.
Every law firm handling personal injury cases, motor vehicle cases, wrongful death cases, sexual assaults, molestation, and negligent security cases, must be prepared as if the case will go to trial. Settling without thorough preparation will signal the defense of a lack of commitment to securing the best possible outcome. Remember, in civil cases, the burden of proof always rests with the plaintiff. It’s the plaintiff’s duty to prove the defendant was negligent.
Generally speaking, about 70%-80% of personal injury cases that go to mediation are resolved. While it is often said that cases that go to trial are more likely to be won by the plaintiff, in our experience, the odds of success at trial are considerably higher, but winning is not the only consideration. The amount awarded at trial and how the jury apportions fault are crucial factors that need to be considered.
In Georgia, for instance, a defendant can apportion fault to an unnamed party, potentially reducing a plaintiff’s award significantly. For example, a defendant landlord may be found ‘responsible’, but the jury may find the landlord to be only 70% responsible, perhaps by suggesting to the jury that a shooter should bear at least some fault. If this happens, the amount awarded to the plaintiff is automatically reduced by 30%. Defense firms oftentimes attempt to convince a jury to apportion at least part of the fault to the plaintiff, further complicating an outcome. For example, a plaintiff slips and falls at a local grocery store. The defense may say the plaintiff should have been watching where he or she was walking. In Georgia, if you’re 50% at fault, your lawsuit award is reduced to zero.
When deciding whether to settle or proceed to trial, it’s essential to weigh the options carefully. Mediation, though typically faster and less risky, may not always result in an acceptable resolution or settlement. Nonetheless, attempting mediation can provide valuable insights into a defendant’s position in the event the case does go to trial.
Mediation is a valuable tool in resolving disputes. It is essential to not accept a settlement significantly below what you and your lawyer deem fair and reasonable. Never be afraid to say no to a number! Always be willing to negotiate but never be afraid to walk away if it is in your best interest.Top of Form
Need help deciding on the course of action for your case? The lawyers at Isenberg & Hewitt are experts in personal injury, wrongful death, sexual assault cases, and more. Contact us for guidance.