Every mediation is different. Some start high and some start low based on the facts of each case. Because of that, figuring out the average settlement offers during mediation is virtually impossible to do. What benefit would it be to you to see a composite of hundreds of cases boiled down to one number that takes serious and minimal cases into account equally? Probably none.
While all of this is very true, there are a few things about mediation that is very typical. Many of these typical characteristics of mediation are frustrating for personal injury victims. And they are frustrating for good reason.
After doing mediations over the last 10 years or so, the following 4 things are almost universally true:
1. The insurance company’s lawyer doesn’t understand all the facts
I’ve been in mediations where I’ve prepared a detailed opening statement almost to the point of trial quality. My client sits next to me hearing all of these terrible things that she had to live through and starts crying. The proof in the pudding is laid out on the table for all to see.
Then, the defense lawyer gives his opening statement. It is two minutes long; consist of insincere condolences for the events that transpired coupled with an unrealistic hope that we can reach a resolution today. The end.
This can tell you one of two things. First, you win on all counts. Why reduce your opinion of case value if the defense has no defense? Or Second, the defense lawyer is entirely unprepared for mediation and the insurance adjuster is pulling all the strings.
Either way, that type of opening statement is incredibly frustrating, especially when followed by # 2.
2. The first offer is insulting
You’ve got $40,000 in medical bills and they offer you $50,000 to start? Or worse, say they offer you less? How are you supposed to pay your cost (the mediator is likely charging $250-400 per hour) and your attorney’s fees (usually 1/3 contingency fee on your recovery) if they are only offering you $10,000 above your bills? Beyond that, if your health insurance has a lien on the proceeds, then you have to pay that back too!
All of this leads to a feeling of adding insult to injury. Sometimes this is a defense strategy to beat up the plaintiff before trial. To drag your opinion of value down to help create uncertainty in your mind leading up to trial.
It doesn’t always happen this way but it is helpful to try and get an offer on the table prior to mediation, so you know where each side is coming in at.
3. The day moves slowly
You start at 10 a.m. The conference room is full of people. Everyone has had their coffee and a pastry to two. You’re ready to roll. The first offer is in and low. You reduce your demand by a little bit. They increase their offer by a little bit. Back and forth and so on and so forth.
Lunch is over and your stomach is full. You worked through lunch still trading offers and demands. But you are still miles apart.
The day usually moves super slow at the beginning. In my experience, most mediations start to heat up about an hour after lunch. Parties start moving at a larger and faster pace. Perhaps everyone wants to get home for dinner or perhaps the process just works, I’m not sure. But when you start negotiating, brace yourself for slow movement.
4. You get less than you wanted, they pay more than they wanted
I’ve had several mediators tell me the sign of a successful mediation is when the plaintiff gets less than expected and the insurance company pays more than it expected. That is the ultimate compromise. I always try to tell people who are going into a mediation to expect to be asked to take less than that number that is floating around in the back of your head. You should expect, at least, to be asked. It is your decision whether you will agree to do that or not. But you can expect the mediator to ask you.
While I cannot answer definitively what the average settlement offers are at a mediation, I hope this overview helps cut through some of the confusion and noise surrounding your case. Click on these links if you want to know more about how much your Virginia personal injury case is worth or whether you should settle at mediation.