Ouch! When can I Collect . . .
Personal injury cases come in many, many different sizes. There are fender benders with bruises, class actions, medical malpractice cases (many different sizes there, too), “minor” injuries, major ones, in-between ones. And of course there are damages, which often determine the length of litigation and of a mediation.
One of the sad facts in our country is that someone injured by a “deep pocket” can usually expect to collect more than someone with the same injury caused by a person who is bankrupt. In the U.S., the health costs associated with a major injury can be financially devastating. In countries with universal health care, people don’t lose their homes or declare bankruptcy due to medical bills.
One reason the September 11 Victim Compensation Fund was set up after the 9/11 attacks was a feeling that many of those injured and the families of those killed would never be able to fully recover financially through litigation. But that was a one-shot deal, the result of a national trauma. People are injured every day who will not benefit from such a compensation system.
A personal injury mediation will be affected partly by a matrix of injury, insurance, defendant’s financial resources (or lack thereof), plaintiff’s age, marital status, children, and earnings. A seven year-old with a broken arm can be very different from a concert pianist with a broken arm and a family of five. But these are all givens.
Once a case is active, a mediation can move forward quickly if the parties have exchanged the following:
- relevant medical information
- analyses of future medical conditions and costs
- proof of past income
- jury verdicts involving similar injuries (if needed)
- whatever else may be relevant to the particular case
Maybe there are multiple parties. If so, the mediator needs to make sure each will be present at the mediation, and will show up with the requisite authority to settle the case.
While the length of the sessions can vary, most of the personal injury mediations I have done get settled in one or two sessions. Occasionally it becomes apparent that a defendant needs to get more authority to settle, or a plaintiff needs to consider that the case is worth less than expected. This may mean the parties need to call it a day and think things over.
In most jurisdictions, the plaintiff’s and defendant’s personal injury bars get to know each other over time, and this can often be helpful in resolving matters. Attorneys know they may be dealing with each other in the future, and sometimes there is a give and take that can smooth out negotiations in individual cases. Insurance companies sometimes participate in “settlement days” with the goal of addressing multiple cases over the course of a day. (The potential ethical issue is for another time.)
That’s it for the “How Long Does a Mediation Take?” series. If you have missed any of the previous ones — Commercial, Divorce, or Employment — you can access them on my blog page at ShafferMediation.com. I welcome your comments.