Personal Injury Litigation and Mediation
by
David B. Harwi, Esq. and George Reath, Jr., Esq.

Plaintiff was operating his automobile when it was involved in a collision with another car being operated by defendant. Plaintiff was injured in the accident. Defendant’s insurance carrier was unwilling to meet plaintiff’s demand. Plaintiff sued.

Defendant’s enlightened carrier had adopted a policy to mediate disputes prior to incurring substantial process costs. Plaintiff was willing to participate in the mediation because of the low stakes nature of the proceeding - nothing was binding until an agreement was reached and the content of the proceeding would remain confidential. In addition the carrier was willing to pay the mediator’s fee. Counsel for plaintiff and defendant agreed upon a professional mediator.

Following the opening statements by the parties and their counsel, the mediator met privately with each side. The mediator played the role of devil’s advocate and challenged the arguments of the parties. During the course of the caucus with the defendant, the adjuster and defense counsel acknowledged that there was a strong likelihood that defendant would be found liable at trial and were willing to offer $30,000. The mediator was instructed to carry that offer but not the acknowledgment of liability to plaintiff.

Plaintiff demanded $120,000. In the shuttle diplomacy conducted by the mediator neither side would move. However, the mediator did learn from the defense that the insurance carrier would be willing to increase its offer if there was significant movement from the plaintiff. The plaintiff was willing to move but not significantly.

The mediator suggested to the defense team the use of an arbitrator to resolve the issue of damages. Defense counsel was interested but wanted to insure that its exposure was not open-ended. The mediator and the defense discussed that issue. The brainstorming resulted in the suggestion of limiting the arbitrator’s award to not less than $30,000 and not more than $100,000. The plaintiff agreed to the approach. When the parties came together the details of the arbitration were worked out. The arbitrator was to assume the defendant was liable, base the determination of damages on plaintiff’s testimony and expert reports and the arbitrator would not be told the high and low numbers.

The parties left the mediation comfortable with the result.

© Triage Mediation Services Inc. 2000