When Is Mediation Not a Good Idea?
Posted on Thursday, November 10th, 2022 at 6:04 pm
Personal injury mediation may help both parties to a case avoid a long, costly, and public trial in Alabama’s court system. However, it is not the universal solution to every case. Your lawyer will consider and advise you about the following scenarios where mediation may not be ideal.
Both Sides Disagree on the Facts
The most productive and successful mediation sessions are ones where the parties are well-prepared. Your lawyer will not enter mediation until they have the evidence necessary to prove the defendant’s negligence. If the defense has strong disagreements with your evidence, they will be far less likely to act constructively, respond positively to offers you propose, or agree to participate in mediation at all.
The Defense’s Offers Differ from What You Need
Before entering any negotiation, you and your lawyer will agree on a minimum settlement offer to pursue. The defense team will likely make counteroffers during the mediation process, even if the evidence shows their client is responsible for injuring you. A counteroffer below the minimum settlement amount you seek is called a “lowball” offer.
We should stress that mediation requires compromise from both sides, and you will only sign settlement papers if both sides agree to the terms. It’s not likely that the defense will accept your lawyer’s initial offer. However, if they persistently counter with lowball offers, your lawyer may decide that continuing the mediation is more trouble than it’s worth.
Finally, remember that the defense lawyer likely represents a large insurance company and may not have the final say in the amount they offer. Even if the lawyer personally believes that a proposal you make is fair, they may have to get permission from their supervisor to agree to it. If an insurer’s mediation policies are overly strict, your lawyer may decide that another option would lead to a better outcome.
The Defendant Does Not Behave Constructively
Mediation is far less stressful than a courtroom trial. However, emotions can and often do run high, especially if the defendant is present at the sessions. Your lawyer may decide to walk away from the mediation if:
- They believe the defendant is not interested in taking the mediation seriously.
- The defense team accuses you of acting in bad faith.
- The defense team makes an offer but threatens to end the mediation if you don’t accept it.
- The defendant acts against their lawyer’s advice.
- The defense does not appear at mediation sessions ordered by the court.
Often, non-constructive behavior is an effect of the plaintiff and the defendant being in the same building, even if they’re in separate rooms. If the defense’s legal team is cooperative, but the defendant is not, your lawyer may decide to negotiate a settlement through their own channels. Both sides may also agree to continue mediation without the defendant present.
If Not Mediation, Then What?
Before initiating mediation, your lawyer will determine whether it can lead to sufficient, timely compensation for you. If they decide that entering mediation isn’t a good idea, they may choose any of these avenues:
- Arbitration – While arbitration works similarly to a trial, it takes place privately and wholly outside the court system. A mutually-selected arbiter or group of arbiters will hear the case and determine a solution that would result in the best possible outcome for everyone. Arbitration can be legally binding or non-binding.
- Settling before trial – Sometimes, mediation becomes a better option after your lawyer files a lawsuit. This is particularly the case when they need evidence requiring a court order to access, such as depositions or phone records. Further, after you file, the defense will face extra pressure to reach a settlement and avert a courtroom battle.
- Proceeding with a trial – Your lawyer may determine that your case is strong enough that a trial would be the best way to secure maximum compensation.
Contact a Birmingham, AL, Personal Injury Mediation Attorney
The Birmingham personal injury lawyers of Farris, Riley & Pitt, LLP have 20 years of experience with a variety of mediation scenarios. Our attorneys will treat you as a member of our family, with the utmost standards of respect and the skills that have won our clients over $200 million in awards and settlements. Contact our office today at (205) 324-1212 for a free consultation.