Insurance companies are able to resolve claims. They keep statistics on different types of cases. They probably won`t offer you more than what their statistics show for a case like yours that you should settle for. Since they have to deal with many cases, they know that even if they lose or make a bad case, they will win or succeed at another. As far as they are concerned, everything goes out into the laundry room. Don`t expect them to agree to pay more than they think your case is worth it. The lawyers, mediator and insurance company will talk about what a typical jury is likely to do based on their experience. What you want or need is not the criteria for an agreement. Instead, you should listen to what experienced people have to say about what you`re likely to bring if you go to court instead of settling the case. Often, a mediation settlement leads to more net recovery for you than a court ruling.
Another difference between court proceedings and mediation is that in mediation, the mediator leads the discussion but has no decision-making power over the case. The mediator may not ask either party to reach an agreement. At trial, the judge has power and influence over the outcome of the case. Tip #12: Make progress at the end of the day. There are a few tricks to reach an agreement at the end of the day. One is to throw away «the rest of the money» and instill a sense of urgency. It`s a tactic to convince the other party that it`s the best thing you can do. Another option is to «share the baby» and meet in the middle, which might work if you`re very close, but never do it too soon, because once you make the suggestion, you told the other side that you`d go all the way to that intermediate number. The same goes for a «would be ya, could ya», which means that if you go to that number, I`ll go to that number. These are sometimes called «parentheses». If, at any time, you offer a one-time upfront payment, there is no way to withdraw it.
For settlements that involve a series of payments, always negotiate the lump sum first, then arrive at the monthly payments. If the other side stops, «don`t bid against yourself» by moving twice without the other side moving. However, the mere fact of opening negotiations with a certain number almost never means «bidding against oneself», as there is a good chance that it is not even in the stage of what the other party would accept. As a general rule, claimants should expect to leave first with an opening claim. If the other party plays a difficult role and makes small concessions, you should punish bad behavior by doing everything they do and conveying a certain message through the mediator that «our last step is a response to what comes from you.» Similarly, you should reward good behavior. Don`t come as a percentage because they mean nothing. They could drop by 5% ($100,000 to $95,000) and they could increase by 100% ($5,000 to $10,000) and both parties moved only $5,000. They should have an endgame plan, that is, a way to give the other party a small victory to get them to close the deal. This is psychologically very important. For example, you can offer to pay the mediator`s full fee. Typically, it is not a good idea to bring the parties together to talk «man against man» to reach an agreement, because the weaker could give in without the presence of his lawyer, or their mind could destroy all the progress of mediation so far. If the other party offers non-monetary conditions, do not try to negotiate the amount of money at the same time, as it is the non-monetary conditions that will help you evaluate the monetary component, and some of them can be very valuable if you fully understand what is offered.
Be wary of clients who try to negotiate your fees just to make the settlement work, or clients who ask for your opinion if they should accept a final offer and then accuse you of bias, especially in a case of success fees. If it appears that the parties are simply too far apart instead of declaring an impasse, the parties may agree to settle part of the case. In any case, you should have a game plan to be able to progress at the end of the day. One of the biggest benefits of mediation is that settling your case before it goes to court could save you a lot of money: between what to expect from testimony, experts, and various other legal costs, lawsuits are expensive and those expenses can come with your settlement. Even though you may receive less damages if you settle out of court, you can keep more of those damages once the case closes (and even see a check earlier than after a lawsuit where an appeal can be filed). This does not mean that mediation is cost-free: the process takes a few hours, and these hours can be costly depending on the mediator involved. Tip #6: Design a good mediation summary. Lawyers must ensure that their written statement of mediation is neutral, contains the correct information and is not excessively long or technical. For example, you probably don`t need to attach all the wills and believe that a deceased person has already executed. However, if there is a paragraph of a contract whose interpretation is at the heart of the matter, you should attach the actual page of the contract and not try to paraphrase. It may be strange for a mediator to read, «The contract is clear and unambiguous,» followed by three paragraphs of detailed interpretation.
The mediator will probably read both summaries the day before the mediation for an hour or two, so use your space wisely. The mediation statement must include the key facts, claims and defenses, and the status of the discovery. He or she should comment on experts, dispositive requests, related disputes, previous disputes between the parties, previous negotiations (i.e., anchor points), offers of judgments or settlement proposals, issues of transfer of fees and who comes to mediation. The change in fees changes the perspective of risk. A mediation statement would generally not be confidential, especially if it attaches submitted pleadings, so you should ask the mediator to keep them confidential. See Fla. Stat. § 44.405 on confidentiality. In fact, some lawyers prepare a second summary that contains only confidential information.
If you want the mediator to know that they need to reassure someone from the beginning, call them the night before. Also ask yourself if you have any ethical issues dealing with multiple people before mediation. For example, if you represent three sisters against their brother, they may not agree on how a will or trust should be reformed in court. .