Mediation in an Ohio Injury Case: What to Expect

Published August 2, 2016 · Injury Law Basics

Your case was filed a year ago. Depositions are done, the medical records have been exchanged, and now there is a date on the calendar labeled "mediation." The letter from our office says to plan on being at the courthouse most of the day. Most clients call me after reading that letter with the same two questions: what actually happens in that room, and do I have to agree to anything?

Here is the honest answer to both, based on the way mediation works in the Montgomery County Court of Common Pleas and the surrounding courts where we practice.

What mediation is, and what it is not

Mediation is a structured settlement negotiation run by a neutral third person, the mediator. In our local courts the mediator is usually a magistrate assigned to the court's mediation program or a retired judge or experienced lawyer chosen by agreement. Ohio's civil rules give trial judges broad authority to manage cases toward settlement, and judges in the Dayton area routinely refer injury cases to mediation before trial.

The mediator has no power to decide anything. She cannot rule on who was at fault, cannot award damages, and cannot force you to accept an offer. Everything said in mediation is confidential and cannot be used at trial. If no agreement is reached, the case simply proceeds toward its trial date as though the day never happened.

That makes mediation very different from arbitration, where a private decision-maker actually decides the case. Nobody loses at mediation. The only thing at risk is a day of your time.

Who is in the room

On our side: you, me, and sometimes your spouse if there is a loss-of-consortium claim. On the other side: the defense lawyer and, most importantly, the insurance adjuster who holds the checkbook. Many courts require that a representative with full settlement authority attend in person, and we insist on it. A mediation with an adjuster who has to "call the home office" for every number is a mediation designed to fail.

The at-fault driver usually does not attend, and when he does he rarely speaks. The decisions are made by the insurer.

How the day unfolds

Opening session. Everyone gathers in one room. The mediator explains the ground rules and each lawyer gives a short summary of the case. I use this time to make sure the adjuster hears, in plain terms, what the injury has done to your life and what a Montgomery County jury is likely to do with that evidence. Some mediators skip the joint session entirely if the parties prefer; that is a judgment call we make together beforehand.

Private caucuses. The parties then separate into different rooms and the mediator shuttles between them. This is where the real work happens. In our room, the mediator will test the weaknesses in our case and ask what number would settle it. In theirs, she will press the adjuster on the strengths of our case and the risk of a verdict. Nothing you tell the mediator in private is shared with the other side unless you authorize it.

The exchange of numbers. We make a demand. They make an offer. The first offer is almost always low, sometimes insultingly so, and I tell every client in advance to expect that. I wrote several years ago about why insurers open with a quick, low number, and the reasoning is the same at mediation. The opening offer is a test of your resolve, not a valuation of your injury.

Brackets. When the gap is large, an experienced mediator may propose a bracket: for example, the plaintiff agrees to come down to $400,000 if the defense comes up to $150,000, and negotiation continues inside that range. Brackets let both sides make bigger moves without feeling they are bidding against themselves.

The mediator's proposal. If the parties stall close together, the mediator may privately suggest a number to each side. Each side says yes or no without knowing the other's answer. If both say yes, the case is settled.

How the adjuster evaluates your case

It helps to understand what is happening in the other room. The adjuster arrives with an authority range that was set weeks earlier by a supervisor or committee, based on the medical specials, the liability picture, the venue, the treating doctors' opinions, and a file review of you. By the time of mediation the insurer has read your deposition, your medical records, and very likely your social media. I have written before about what adjusters look for online; by mediation day, whatever they found is in the file.

The adjuster is weighing one thing above all: the cost and risk of trial versus the cost of settling today. Our preparation is aimed at making that calculation tilt in your favor. Clear liability evidence, well-documented treatment, a treating physician who will testify about permanency, and a plaintiff who presented well at deposition all raise the number the insurer is willing to pay.

Why most cases settle at or near mediation

In my experience the large majority of injury cases that reach mediation settle there or within a few weeks afterward. Both sides have seen the evidence. The insurer has a trial date approaching and a defense bill that grows every month. The plaintiff has a chance to end the uncertainty and receive compensation now instead of a year or more from now, after trial and any appeal.

Settling is also a decision about risk. A jury can award more than the offer on the table. A jury can also award less, or nothing. I will give you my honest assessment of those odds, but the decision is yours. I do not settle cases without the client's informed agreement, and I will never pressure you to take a number I would not recommend to my own family.

Things to sort out before you say yes

A settlement figure is not the same as the check you take home. Before agreeing to any number we will already have worked through the medical liens and subrogation claims that have to be paid from the recovery. I explained how health-insurance subrogation and Ohio's make-whole rule work in an earlier post. Knowing those figures in advance is what lets us tell you, in the room, what a given offer actually means for you.

If there is a workers' compensation claim, a Medicare or Medicaid interest, or a minor involved, additional approvals may be required before the money can be disbursed. None of that should surprise you on mediation day because we will have discussed it beforehand.

What happens if it fails

Sometimes the insurer simply will not pay a fair number. When that happens we leave, the case stays on the trial docket, and preparation for trial continues. Often the insurer comes back with a better offer a few weeks later, once the adjuster has reported to the supervisor that the plaintiff is not going away. A failed mediation is frequently the first step toward a good settlement.

What this means for you

Mediation is the single most important day in most injury cases that do not go to trial. You do not need to be a skilled negotiator; that is my job. Your job is to be there, be honest, and be prepared, and we will prepare you. Our personal injury practice handles mediation and trial in Montgomery, Greene, Warren and Miami Counties, and you work directly with your lawyers from the first call through the final check.