When to come to the table?

Graphic: Personal Injury Example
Timing is Everything

Within 90 Days of Incident


1. Defense counsel has not yet been assigned.

2. A neutral third party will aid in focusing clients unreasonable expectations.

3. You have been assigned an adjuster you have done business with before.


1. Because the treatment of the injuries have not yet been concluded, moving to mediate at this point may result in a severely compromised settlement as compared to the fair value of the case.

2. Assumes a failed negotiation.

3. You have not had time to complete your liability investigation.

4. Insurer might view you as too hungry for settlement, giving him the upper-hand.


After Treatment of Injuries Are Concluded


1. Defense counsel has not yet been assigned.

2. Your costs in terms of time and financial outlay are low, which translates into a larger return on your time.

3. If liability is a problem, the insurer might be willing to invest more in settlement in order to avoid defense costs.

4. The client will be more satisfied with an early resolution.


1. Insurer might use lack of a defense medical as an excuse not to put good money on table.

2. Your costs and time investment are low which translates into larger return on your time.

3. If liability is a problem, insurer might be willing to invest more in settlement in order to avoid defense costs.

4. In the case of a major injury, the insurer may not yet be under enough pressure to pay the full value.

5. The “reserves” might not be set at appropriate limits.

After The Lawsuit Is Filed and Served


1. Some insurers have defense counsel on flat fees so they are motivated to move a case early.

2. If you filed simply to avoid the statute of limitations, you are probably waiting for treatment to finish anyway. Offer an extension to the adjuster so that you can mediate before the case is sent to defense counsel.

3. Include with the copy of the lawsuit a demand letter, and offer mediation. Such a move demonstrates strength along with a willingness to be flexible.

4. The costs are still manageable at this point, translating into more money in the client’s pocket.

5. The adjuster may benefit by closing the suit early. Insurers have a great deal of tension between paying indemnity and defense costs.


1. If you have already attempted to resolve the case, you will look weak by asking for mediation at this point.

2. In a major injury case, you may be discounting the case value if the insurer has not received all medical records and had them reviewed by their experts.

3. Consider whether reserves are appropriate.


Discovery Commenced


1. Even if the case does not settle, the mediator can recommend limitations for future discovery in order to focus the insurer on settlement.

2. By being aggressive with discovery, you demonstrate strength in your case by requesting mediation.

3. You can request mediation and cite as an excuse the fact that the court will undoubtedly encourage its use.


1. A laid back approach to discovery will make you appear weak if you request mediation.

2. The adjuster may have calendared the case for the date defense counsel stated discovery would be completed. Thus, you may not get a response.

Before Expert Depositions Taken


1. Obviously the costs are about to skyrocket.

2. The majority of information is in. The adjuster should be in a position to evaluate.

3. The insurer has not yet incurred expert costs. The defense counsel can use that fact as a carrot for adding more money to the table.

4. Motions for summary judgment have been heard and you are still in the hunt.


1. Your experts have already been retained, which has permitted you to reevaluate the damages of your case. In order to maximize those damages, the defense needs to meet your experts.

2. Never request mediation within a couple of weeks of losing a discovery motion.

Discovery Concluded


1. There are no excuses left to evaluate the merits of the case.

2. High-level insurance claims representatives have reviewed the file.

3. There is no downside to you since the case is virtually in the can.

4. Client might be more satisfied with settlement than sitting through trial.

5. Gives you two bites at the apple.

6. If you are having client control problems, this gives you an opportunity to utilize the neutral to assist in managing the client’s expectations.


Top Ten List:

1. Never request mediation within two weeks after you’ve lost any motion, no matter how insignificant.

2. The most profitable mediation on a great case generally occurs before expert discovery, although it can happen closer to the trial date. The most profitable mediation on a so-so case occurs close to the trial date, assuming your experts have not betrayed you. The most profitable mediation on a bad case occurs before you file the lawsuit, or as soon thereafter as you can manage with a straight face.

3. Ask for mediation in a letter which accompanies a motion to compel discovery. Offer to postpone the motion if other party agrees to mediation.

4. Where you have a belief in the merits of your case, send out a letter demanding mediation, and specify your good faith estimate of the value of the case. Indicate that you will only agree to mediation if the other party fully understands and acknowledges your approximated value. If you then show up at the mediation and the other party comes in substantially below that approximated value, leave promptly.

5. Allow the judge to propose mediation at the initial status conference.

6. If the other side refuses to offer good money on a good case, do not be afraid to leave the mediation.

7. Don’t get discouraged if the case does not settle after the first mediation session.

8. Mediations often work best for a defendant when a summary judgment motion has been filed, but before the hearing and before plaintiff’s opposition is due. Mediations often work best for plaintiffs just after the summary judgment motion has been denied. Schedule accordingly.

9. Consider a cost basis analysis. This means that for every month you have the case open, the time you have committed to the case increases yet there is no guarantee that the value of the case goes up.

10. You maintain complete control over the outcome of the case. If the mediation doesn’t result in an offer that is acceptable, you can just say no and proceed to trial.

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