I started to title this post Four Reasons Why Personal Injury Mediations Fail (And One Reason Why They Should Fail). That title is too long. So, I’ll primarily address four reasons why personal injury mediations do NOT succeed. Then, I’ll end with some commentary about an occasion when mediations should fail.
Our law firm philosophy is clear. We prepare all cases for trial. We believe preparation leads to better long-term results both at trial and settlement. When we survey all the lawyers mass-advertising on billboards, television and radio, it is clear many attorneys view matters differently. Those mass-advertising lawyers are usually about quantity rather than quality. That’s a sad commentary on our profession.
Let me return to my discussion of personal injury mediations. What are some reasons why a personal injury mediation may fail? Here are four:
1. INADEQUATE PREPARATION BY YOUR PERSONAL INJURY LAWYER
Preparation. It is essential to long-term success. Face it, some lawyers are lazy. Others lack the focus to spend long hours preparing their cases. This is a huge problem. When you work hard to prepare your cases, you increase the chances of success at both mediation and trial.
Before we ever mediate a claim, we know the facts and law backward and forward. We prepare and learn everything we can about our client, the witnesses, the scene, the injuries and the law. Mediations are about money. To get the maximum money, you must understand your case. You must be able to address any factual or legal issues that arise. Some lawyers believe they can waltz into mediation and get some money. Maybe they can. But, they won’t get as much. And, they will usually get far less for their client than they should have.
2. EMOTIONAL ISSUES BY THE PARTIES
In car accident and workers’ compensation cases, the defendant has insurance. Alabama law requires every driver to have liability insurance. Because the defendants have insurance, some of the emotional issues are removed.
Anger or hurt feelings can still play a part. I’ve handled plenty of car accident cases where the parties argued at the scene of the wreck. Afterwards, maybe the insurance adjuster was rude to one of the drivers. A slight can bring emotional issues that impact decision-making. I’ve handled plenty of workers’ compensation mediations where the worker carries hurt feelings because the boss or case nurse mis-treated him or her. I understand these hurt feelings. On the other side of the table, I’ve watched self-insured defendants make terrible decisions not to settle only to face much higher personal costs at trial.
Emotional issues can impact decision-making. Because emotional issues can impact all parts of a case, we begin working with our clients from the first meeting to prepare fully for each stage. We spend substantial time preparing our clients. We do it to increase the odds of success. We also do it to provide our clients comfort at each stage of the process.
3. ONE PARTY MISCALCULATES THEIR POSSIBLE OUTCOMES AT TRIAL
An old partner of mine used to say that the best trials happen where the defense miscalculates their risk of losing. He was right. Our best trial results typically occur when a defendant underestimates their risk of losing or risk of losing big. When I think about this issue, I always think first about an industrial accident jury trial I had several years ago. In an early hearing shortly after the case was filed, the defense lawyer (arrogantly) told the judge his client would “never offer a dime.” His boastfulness surprised me. To give him credit, his client did not offer any money before trial. But, he had seriously misunderstood our claims. Because of that, he miscalculated the risk. He finally realized his mistake during the jury trial but it was too late. It cost his client a lot of money. For another example, our best workers’ compensation trial results have often been produced against specific insurance carriers who always (in every case) underestimate their risk of losing.
Miscalculations can occur on either side. Plaintiffs can miscalculate their possible or likely outcomes as well. That’s why advance preparation and rational decision-making are so important. Prepared lawyers make fewer mistakes calculating risks.
4. THE DEFENSE LAWYER IS MOTIVATED MORE BY HOURLY BILLING DESIRES
I almost did not include this reason. In the end, I felt compelled to do so. I know many excellent defense lawyers who do a great job preparing their cases. Those lawyers try to do the best for their clients. But, a small few lawyers on both sides do NOT have their clients’ interests at heart. On the defense side, those few lawyers care more about their hourly billing than their client. These are the lawyers who will sometimes get their defense clients in a deep bind. They will continue to bill and ignore opportunities to resolve matters until it is too late. They make our profession look bad.
BONUS: ONE REASON MEDIATIONS SUCCEED WHEN THEY SHOULD HAVE FAILED
Now that I’ve broached the subject of those few lawyers who care more about their fees than their clients, don’t think I’m singling out defense lawyers. Yes, a few defense lawyers do run those hourly bills to high levels instead of helping clients. But, a few plaintiff lawyers (back to the billboard, settlement mill ones) care less about their clients than they do about the quick and easy settlements. Some of these lawyers are just lazy. Others are motivated by the fees of a volume of cases. Regardless, these lawyers settle claims for far less than their value to get the quick fee. That’s terribly wrong for injured people.