Blog Post

Personal Injury and Mediation

Posted by: Michael Sawaya
June 24, 2009
Topic: Personal Injury

From thirty years ago when mediation of a personal injury claim was very rare, to today when mediation is done in nearly every case, there could not have been a greater change in the way that disputed injury claims are resolved in Colorado. The Colorado personal injury attorneys of the court cases of the older days were given the authority to resolve claims without the adjuster's physical presence. Now the drill is to bring in the adjuster for a mediation to make the final decision on whether and how much to offer to settle the claim. This adjuster may not know much about the litigation case, and may also not be as aware as the defense attorney is regarding the merits of the claim.

Mediation is a service usually performed by a trained mediator, or a former judge. It can be effective to settle cases. Twenty years ago when it first began to be accepted for use in personal injury cases in Colorado, it was a procedure that was applied in an even-handed and manner mostly fair to both sides in the case. In the past few years the biases against the injured plaintiff have increased. This is mirrored in the mediation process as well. The mediators have taken to presenting the claim for the plaintiff as problematic. The emphasis on losing the case entirely has increased. In some cases it is painful to take part as plaintiff's attorney in the mediation process. In other cases it is just unpleasant. It is very seldom a comfortable process for the plaintiff's attorney.

In a great number of personal injury cases it is entirely appropriate to educate a plaintiff on the likely true value of the personal injury claim. In other cases the plaintiff is made to feel there are significant weaknesses with the case and great peril in litigating a case that the plaintiff would otherwise has wished to litigate. I call it the "organized fear tactics". Even if the plaintiff's attorney is aware of the fear tactic and presents a front against it, it is very difficult for the plaintiff to avoid the feeling that the process is not one in which an ordinary citizen is wise to fight with an insurance company. Compounding this problem is the fact that the insurance have developed the method of "low balling" the settlement for several hours to break the will of the plaintiff. Even the strongest plaintiff has a feeling after five or six hours that there must be serious problems with their case since the insurance company has not put much money on the table.

Except in the most significant and serious injury cases, the same fear tactics do not work well against a wealthy and well-organized insurance company. Therefore, the entire process has transformed into a procedure that is fundamentally unfair to the plaintiff. Plaintiffs are frequently bound by court order to mediate their cases. The cost of doing so with a trained mediator or a former judge is expensive. The only option is to have a court sponsored mediator perform the mediation at fees substantially reduced. That is a procedure to be considered only if it is felt that a settlement in the case has only a very remote chance of happening at a mediation.