Mediation of a personal injury matter can take various turns as information is revealed or becomes known between the various sides. Often, the information or the details related to the personal injury plaintiff can have a significant effect on the valuation of the matter being mediated in the eyes of the defense, its insurer that allocates limits to the adjuster, and to the adjuster as well. Sometimes the information is not known to the defense and only becomes known during deposition, during discover, or during mediation. The information might be shared by plaintiff to answer questions from the defense that can help clear the way for settlement. Even so, a mediator must be cautious to not share learned details from a party in caucus without clear and distinct permission.
The evaluative mediator remains neutral but can offer analysis. Sometimes the mediator is asked for some perspective based on perceptions and experience as relates to the fact pattern, impressions of those who may testify, and the kinds of reactions that a trier of fact may have as relates to these. Generally, the evaluative mediator should ask permission of the party and of counsel to offer such impressions, doing so while in caucus. Evaluative perspectives should not be offered in joint session unless both parties clearly and distinctly so ask; the mediator should even double check to be sure before offering impressions to both at once.
There may be explanations to the mediator that answer concerns or impressions raised by the mediator. The mediator’s concerns or impressions may be mistaken or may arise from lack of context then provided. This is another key reason for evaluative expression during caucus as opposed to during a joint session.
On a whole, a key concern will be how much veracity there is attributable to the plaintiff. Believeability goes a long way toward settlement. That someone would make a good, likeable witness is also important. The degree to which there might be sympathy for the witness, for example, the plaintiff is also a subjective factor. At mediation, if in joint session, the defense counsel and if attending, the adjuster, have an opportunity to view the plaintiff speaking for his or her self to another person, the mediator. Even where there is solely caucus, the mediator can offer to each side, if asked, impressions of the other party as a witness– or even of the party asking for the impression.
In the course of mediation, there are many various issues that can come up that have a significant effect on valuation and likelihood of success of a plaintiff. Often the plaintiff can be his or her own worst enemy. In the next blog will be some examples of details that may come up while negotiating a settlement between plaintiff and defendant in a personal injury matter.
The mediator in a personal injury matter should convey the facts and perceptions of each side. The marshaling of the facts and perceptions can help the defense see their way clear to raise the offer or the plaintiff to lower the ask. A mediator who goes about an evaluative approach in caucus can often effectively bring a personal injury matter closer to settlement.
About the author: Andrew Tolchin is an attorney and mediator in the greater Houston area, and founder of 713 Mediator, LLC and Tolchin Law Firm, PLLC.