Changes to the well-established path to personal injury mediation

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The dynamics of mediation in personal injury litigation are not easily affected by trends. Although there are a number of factors that restrict the direction of the process and make it difficult for everyone, some aspects of the dynamic will not change.

For example, there is no relationship between the parts that will live in the future. There is little or no opportunity to “widen the pie”, as is often taught in mediation courses. Rather than generating options, the parties focus on how to distribute the fixed resources of an insurance policy or reserve account.

Thus, competition is fierce and trust between parties is generally non-existent. The first rounds of negotiations are often misleading and frustrating, prompting participants in the mediation to exclaim, “We’re wasting our time!

Despite these constants, I believe that the mediation of personal injury claims has changed in several ways.

First, mediators like to say, “mediation is a process, not an event,” because it is not uncommon for the relationship building and substantive negotiation to take place before the participants meet. More cases do not settle in the first (or sometimes second) mediation. Thus, the process then continues by email, phone calls, or on Zoom.

Second, the way many, if not most, mediation sessions begin has changed. In my practice, I often bypass a joint session or an opening statement on my part. The scripted opening statements of the mediators are tedious. Currently, most attorneys and claims professionals can recite them from memory.

Instead of wasting time with statements that everyone has heard before, your mediator can convey important points about the process during early caucus conversations.

Joint sessions can be volatile, and for this reason most attorneys want to avoid them and instead prefer to “meet and greet” attendees. For all that it’s worth, don’t rule out joint sessions in any case just because they can be “difficult”. You need to be able to trust your mediator enough to handle a difficult but necessary conversation and make them serve the process effectively.

I can report that some difficult injury mediations have been resolved recently because we have made deliberate and extensive use of joint sessions. The takeaway is: context is important to the process (i.e. who is involved; what are the issues; what are the outcome goals at this stage of the process; a particular process choice has there a good chance of success; etc.).

Speak to your mediator ahead of time to discuss how the process should begin in order to best manage communication and interpersonal dynamics.

Another change concerns the prevalence and intensity of personal animosity between opposing parties and lawyers. What we see in our national policies is common in mediation.

It’s not just a reflection of distrust between the participants, it’s more intense than that. Name calling and personal attacks have become customary because opponents view themselves as “bad” people from the start. Even if the parties and the lawyers agree on what happened (i.e. the light was red), there is ample room to dispute the character of another participant or what is morally significant in what happened.

To be fair, parts can operate from a difficult and painful place. Obviously, this makes the negotiation more difficult and takes more time. Good mediators will bring patience, the ability to build trust, and savvy negotiation skills to manage this difficult and ever-increasing dynamic.

In addition, the role of personal injury mediators has changed. Mediators are expected to assume and assert more authority by offering evaluative opinions on the case and accompanying the parties when the going gets tough.

The use of quasi-arbitration techniques, such as a mediator’s proposal or blind bidding against the mediator’s number, has become common.

Some mediation purists may dispute this development, believing that mediators should not express opinions or evaluate settlement options. Either way, parties and lawyers usually want the mediator to help them settle the case.

And if the parties want the mediator to act in such a way as to obtain this result by proposing a figure which they are free to accept or reject, I see no ethical problem. Self-determination is a fundamental principle of mediation.

I have one last point that predicts future changes. I believe that technology will advance to the point where artificial intelligence will help the decision-making ability of all participants, asynchronous communication will become more common during negotiation (less emphasis on mediation as an ‘event’ ) and blind negotiations will compose the reactions of the parties to the offers or demands of their adversary.

Perhaps an event like the COVID-19 pandemic will cause these changes. Otherwise, it’s only a matter of time before young clients seek out lawyers and mediators who work and live like them, using the technology they use.

While some parts of personal injury mediation will remain the same, technology will continue to develop and change the way we communicate, assess risk and make decisions.

Jeff Trueman is a full-time mediator and arbitrator. He can be contacted at [email protected]

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