When Is Mediation Not a Good Idea?

Posted on Saturday, October 22nd, 2022 at 7:16 pm    

An overwhelming majority of personal injury cases in Oklahoma never see a courtroom, and the power of mediation is one reason why. However, mediation is not the end-all, be-all solution to resolve cases. Your lawyer may determine that other options may give you a better chance at winning maximal, fair compensation for your injuries and losses. Keep reading to learn about some situations where entering or continuing mediation may not be a good idea.

Your Ideal Settlement and Their Offers Differ Too Much

If your desired settlement and the defense’s offers don’t differ much, you’ll be in an excellent position to work together and possibly enter an agreement during mediation. In practice, however, the difference will often be more substantial.

Even if the evidence shows their customer’s liability, insurance defense teams can argue that it does not warrant the compensation you seek. A defense attorney may think a settlement offer you make is fair, but their supervisor may have a different opinion and order them to continue with a lower offer. In this situation, mediation may take additional effort and compromise, and your lawyer could decide that pursuing other options may lead to a better outcome.

The Insurance Adjuster or Defense Team Does Not Act Constructively

The nature of mediation requires both parties to act in good faith from the beginning of the process. Unfortunately, not every insurance company will negotiate in good faith, and not every defense team will behave constructively and professionally in a mediation environment.

Scenarios where your attorney might avoid or stop mediation include:

  • The defense attorney makes ultimatums (for example, “take this offer, or the mediation ends.”)
  • The insurer makes lowball offers after you establish clear evidence pointing to the defendant’s liability.
  • The defense attorney or insurance adjuster uses manipulative tactics to try to provoke you.
  • Your attorney determines that the defense team is not interested in continuing discussions.

The Defendant is Not Cooperative

Sometimes, the defendant themselves will accompany their insurance company’s representatives to a mediation. If a defendant acts disrespectfully and distracts the other parties in the mediation, your lawyer may determine that continuing with the session would not be productive. Examples include:

  • Making outbursts
  • Interrupting others
  • Displaying disinterest or apathy toward the mediation process
  • Accusing you of acting in bad faith
  • Makes rash statements against their attorney’s advice

In this scenario, one side may reach out to the other to continue negotiations outside mediation. Emotions can run high in a personal injury case, and it may be more productive to make and consider settlement offers when both sides are not in the same place.

There are Significant Disagreements on the Evidence

If you and the insurance company disagree significantly on the facts of the case, they may not wish to enter mediation. Even if you are already in mediation under this scenario, arriving at a fair offer will be challenging. Your lawyer may decide that continuing would cost more time, money, and effort than simply pursuing a different option.

Alternatives to Mediation

If your lawyer decides mediation is not ideal, they will determine which alternative gives you the best odds of success. They may recommend:

  • Continuing with discovery – Settlement negotiations can continue during the discovery phase. Your lawyer may make new requests for production or admission, submit interrogatories to the defense, or depose additional witnesses. As discovery progresses, disagreements among both sides may resolve, improving your odds of success in future remediation sessions.
  • Pursuing binding arbitration – Arbitration occurs outside the court system. Both sides will present their evidence to a third-party arbiter. Unlike a trial, the parties can mutually select the arbiter, and the proceedings are entirely private. The arbiter’s final decision is legally binding and resolves your case.
  • Pursuing non-binding arbitration – Non-binding arbitration follows the same procedures as binding arbitration. However, if you are unsatisfied with the arbiter’s decision, you still reserve your right to proceed with a trial.
  • Pursue a trial – If your lawyer deems none of the above options would be ideal, they may let your lawsuit proceed to trial.

Contact an Oklahoma City Personal Injury Lawyer

The Oklahoma City personal injury attorneys of Abel Law Firm can fight for you in negotiations, arbitration, mediation, or trials. Our goal is to pursue maximum fair compensation for your injuries and losses after an accident that wasn’t your fault changes your life. Contact us at (405) 239-7046 for a free case review.

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Oklahomans across the state have recognized the Abel Law Firm's unique heritage as a statewide institution. Founded by Ed Abel, and today led by his son, Luke Abel, our personal injury law firm has become synonymous with empathy, compassion, and the highest professional performance serving our neighbors. Our family has sought to leave a profound impact upon the State of Oklahoma. We appreciate that former Governor Mary Fallin recognized that dedication when she declared May 1st "Ed Abel Day."

To be named Oklahoma's Best Personal Injury Law Firm is humbling. We are grateful to have won this prestigious honor. We work every day to earn the trust of those we serve: Oklahoma families who are facing some of the most difficulty days of their lives due to the negligence of others. It is our intention and resolve to continue to be deserving of the faith Oklahomans have placed in our family's law firm. Thank you!

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