EP 01 S 07: Should I Go To Mediation? Personal Injury Lawyers & Settlements
Learn How Every Personal Injury Client Can Make a Smart Decision About Settlement vs. Lawsuit….Mediation or Trial……….
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Hi, this is attorney Arkady Frekhtman, I’m a New York City personal injury trial attorney. And I’m coming to you today to answer an FAQ that a lot of viewers like you, as well as even other lawyers, have. And that is how do I settle my case in mediation? Should I do a mediation? And this morning I came to the office and I started working and I was a little bit groggy, it’s going to snow in New York, so I wanted a cup of coffee. And I went downstairs and I got this cup and it says National Arbitration and Mediation, NAM. That’s actually one of the mediation companies. They’re very good. We use them a lot. They have excellent judges. And it gave me the idea for this video.
So should you do mediation? I think you should. But it depends on a few things and you have to have some parameters in place before you do it, some steps that you have to have in place before you agree to mediation. And those should be number one, that the defendants, the insurance company, that they offer you a good faith settlement offer before you agree to go to the mediation. Because the last thing you want to do is just say, “Yes, I’ll agree to go to a mediation.” But you don’t know what the defendants are going to offer you. You don’t want to go into a mediation where you have an independent judge, known as a neutral. And even though it’s non-binding, unlike arbitration where the decision is binding, mediation is non-binding. It’s just an attempt to discuss the case. You can bring witnesses, you can bring your clients, you have that judge, you have the other side, the lawyers, the insurance adjuster can come, should come. You come, of course. But it’s non-binding. Meaning you don’t have to agree. You can say, “No thank you.”
But the cost of the mediation is like $600 an hour sometimes for the judge’s time, for reviewing the materials, spending the time negotiating, and then maybe trying to settle a case even afterward. And it used to be, you would go to the mediations in person and they would have a nice spread of food, you could have lunch there, they would give you these pens. But the cost of a mediation sometimes, depending on the company, could be up to $2,000. And that’s just our share as a plaintiff. So we would try to mediate serious cases, cases that are worth at least 100,000 and up because you’re spending 2,000. But my point is, you really don’t want to agree to mediation unless you have a good faith offer.
For example, if I think a case is worth, let’s say, 500,000, and I’m trying to get 500,000, and the defendant says, “Do you want to go to mediation?” I would say, “Sure, but give me a good faith offer.” And what I mean by that is the defendant tells me, “I’m going to offer you 175,000. And then we have more and we’ll discuss more at the mediation.” I would say, “Yes, let’s do the mediation.” But if the defendant says, “I’m going to offer you 20,000.” Well, then I would say, “Just don’t waste my time.” Because why would I spend that $2,000, prepare, make a whole packet, discuss the liability, discuss the damages, show up only to get disappointed, right? And I’ve done that many times and I’m sure other lawyers, other plaintiff’s lawyers have done that so many times.
And I think it’s almost like a game that the insurance company plays. Because they’re holding the money. They’re like the banker, they’re holding the purse strings. So what they say is, “Oh come, do a mediation. Oh, we don’t have any offers, but we’ll give you one at the mediation.” They make all these promises, which could be false promises. They lure you in. And then at the mediation, they lowball you, they say, “Oh, this is…” They give you all these problems with the case and try to lowball you say, “Oh, take 5,000, take 10,000.” And like, what are you talking about? And then you get upset and then you start to doubt your own case. That’s what they try to do. It’s like a psychological thing. So why do that to yourself? You have to stay strong, stay confident, go to trial. You could get a lot more in trial than you ever will get in any mediation, as long as you have a good case.
So definitely don’t agree to mediation unless they give you that good faith offer. I think that’s very, very important. You have to have that good faith offer. And not a nuisance value offer. It really should be a stepping stone to what you think the case is worth. So like I said if you trying to get 500,000 if they offer you 100,00 I don’t even know if I would go to mediation. That’s too low. 175,000, okay they’re almost halfway there. So I would give them the benefit of the doubt. And I would say, “Okay, fine. Let’s do let’s talk turkey.” I’m trying to get to 500,000, you have to know your own bottom line, does that mean I would not take 450,000? You have to know your own bottom line. Let’s say you would take 450,000, so now if they’re at 175,000, then you have the mediation to bridge the gap.
I’ve been to mediations where the opening offer was like 10,000 or 15,000 and the case ended up settling for like $1.8 million, almost $2 million. So a lot can happen in mediation. And also don’t forget that the mediation does not have to settle the case at one time, meaning the judge could still call the parties after the mediation. A lot of judges give their cell phone numbers. They continue to work, and then they come back for a second mediation. We just settled another case, and that case was a slip and fall on black ice. And it ended up settling for I believe 1.75 million in Queens. And that was a fusion case, a spinal fusion to the gentleman’s lumbar spine. And that case actually went to two mediations. Because the first time we had the mediation and I think the lawyer handling it, wasn’t me, he didn’t follow the rule. He just went and they offered him like 300 or 200. He got upset. He calls me up and I said, “Look, why are you doing this?”
So then I sent them a letter, one of my settlement opportunity letters, which I discuss in some other videos. And I said, look, “You pay me X or else we’re just going to go to trial, the settlement opportunity, the minimum amount we’ll take is going to triple.” SO I put them in the corner and I kind of scared them. I flipped the script on them. And so then the second time we went to the mediation, they took it more seriously. And the case, they ended up settling for almost $2 million, 1.75. But that was because of the fact that the mediator did some work, the groundwork in the first mediation. They saw that we took the case seriously. Between the first mediation where they thought it was just a slip and fall, there’s no proof, between that and the second mediation, when finally settled for almost $2 million, we did some work. We took some depositions.
We actually had a video of our client falling. We actually got a statement from the defendant. They were saying something like, “Your client was running.” And then we had a video showing that he wasn’t running. He was just walking normally. So we’re like, “Why would you say that he’s running unless you’re lying to try to get the case dismissed?”And this was like their witness. And so we had a lot of ammunition against them and so they had to pay up. So, but that’s just an example that you can’t always settle if you’re trying to get a seven-figure case or even an eight-figure case, if it’s a big case, you can’t always do it in one shot. You have to be patient. You have to do it brick by brick, build it slowly, take your time, be careful, dot your Is, cross your Ts, and that’s how you get really good results.
So I hope this has been helpful. There’s a lot more we could talk about with respect to mediations. Maybe I’ll do a few more videos. But I think it illustrates a lot of the points with the settlement. You don’t want to just jump in. You don’t want to make a demand really. I don’t even like the word demand. I like the word settlement opportunity because it’s like a chance to settle the case. And here, I’m giving you a good faith number. If you like it, pay me the number. If you don’t like it, let’s come down a bit. But give me something in good faith that’s reasonable.
But if you’re going to be like way down here in the nuisance value, like 5,000, 10,000 and we’re so far apart, then why even go? I say, “I have enough $2,000 pens.” Because the only thing you ever get after mediation from a case that doesn’t settle is you get to take home one of the pens from whether it’s JAMS or Nam or another company, you get one of their pens. And it’s like, “I don’t need another $2,000 pen. I could go to the Amazon and get for like five bucks.” And I don’t want that expense for my client either. It’s not fair. So that’s why it’s always good to go to mediation, but make sure they have a good faith offer. Make sure you’ve done the groundwork that you know your case and you have the goods. And then sure, you could try it. You could try it. Especially now during the pandemic, when not all cases are going to trial.
Because the big hammer we have as plaintiffs attorneys is trial, jury verdicts. And we say, “Look, if you don’t pay X, then we’re just going to go to trial. We’re just going to see what a jury gives us. And that’s going to be true civil justice. If you’re offering me 100,000, I’m going to get 1 million, 2 million, 3 million, 5 million from that jury.” That’s your hammer, that’s your threat, that’s your end game. But a lot of trials are still being paused because of COVID. So then lawyers have to survive. Clients have to survive. They need to pay their bills. They need money now. And mediations is one of the ways that we get that done. But make sure that you guys flesh out the issue, plaintiff and defense lawyers speak to each other. Don’t just agree to go. Get that good faith offer and then you’ll be set up and you’ll have a successful case.
So I hope this has been helpful. And I wanted to thank everyone again for listening to our channel, watching us, listening to our podcast, watching our videos. We’re going to do a few lives coming up. We’re approaching 1,000 subscribers. And we thank all of you for that. We’re really grateful for everybody that’s watching us and tuning in. And let us know what other content you want to see because we are here for you. You guys are the reason that we have this channel. If it wasn’t for viewers, like you, we wouldn’t be here. And we’re not even PBS, we’re not asking for any contributions. So let us know what you want to see, we’ll make the videos for you. I put one of my cell numbers in the description, in the chat, in the description to the video, you could actually text me and then I’ll text you back or we could talk about your case.
Because a lot of people put comments as well. I can’t always answer the comments in the right way because there’s just not enough information. I would need to ask you more questions to give you a proper answer. And I don’t want to give you the wrong legal answer because I would not be a good lawyer if I did that. So don’t get offended if I don’t give you the answer you want to see publicly in the comments. Just text me directly, email me directly. I’ll be happy to jump on a call or send you an email and we could talk further. Okay. Have a great night. Talk to you soon, and enjoy the weekend. We have snow coming. They stay up to 12 inches. So we’ll see. We’ll see how it is. But it’s just a little drizzle so far, so that’s okay. All right. Have a great weekend. Bye-bye.
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