Mediation either with a private mediator paid for by the parties or Judicial Dispute Resolution (JDR) which uses a Justice of the Court of Queen’s Bench of Alberta as a mediator has become highly popular and successful in Alberta in recent years.
However the outcome your injury lawyer achieves for you is a function of how skilled and how sophisticated he or she is in the art of negotiation. This blog will discuss some of the finer points of negotiation which must be implemented to maximize a personal injury settlement.
Firstly, prior to entering the mediation you must know what your end goal is. The end goal informs your decision making process during the day when offers begin to happen back and forth. If you do not know what your end goal is you could end up accepting or rejecting offers that in hindsight should have not been accepted or rejected.
Secondly, there is a tendency among some less sophisticated lawyers to enter into a mediation or negotiation with the adversarial approach they have been schooled in for years which is to argue and persuade. However, at mediation a sophisticated negotiator will ask questions and listen to the answers. You want to ask questions to find out why the other side is putting forth a certain position. Why gets to “interests”, not “positions”. A position is what the other side wants. An interest is why they want it. Interest based negotiations are more effective.
Thirdly, maximize your leverage in negotiation. In a personal injury claim your leverage is created by being completely prepared and indeed close to a Court of Queen’s Bench trial. Often it is only the threat of a Court of Queen’s Bench trial which will cause the Alberta auto insurance company to offer a fair amount as if the case cannot be settled then it goes to trial and a judge will order the defendant’s insurance company to pay a fair amount, plus potentially costs of the victim in bringing the matter to trial. These costs can vary but can easily amount to $200,000.00 so this creates an incentive for the auto insurance company to be reasonable and settle.
Fourthly, design an “offer-concession strategy”. This deals with timing, speed, and size of offers and concessions. Most negotiators enter the offer-concession stage too soon. Be aware of the premature offer. The longer you wait to start and the longer you wait between moves, the less eager you appear, and vice versa. The size of the increments in the offers show how close you are getting to the end point – or to a failed negotiation if the increments in offers is small and the parties remain a large distance apart.
The injury lawyer and the client should figure out the concession pattern in dollar amounts before the mediation and devise three moves to get to a certain goal. Taper your moves to go to smaller and smaller concessions.
Finally, you must remember to “do the dance” by that I mean you must be prepared to negotiate back and forth just like you do when you purchase a house, there are offers back and forth. There is a tendency sometimes to want to just come in with your first offer as your very best and final offer. The problem with this is the other side expects you to come in with a high offer and expects you to “do the dance”.
You cannot short circuit this process. The process has value as making movement or concessions has a great deal of psychological value for both sides. Mediation allows the dance to occur in one day, rather than months or years.
Negotiation and mediation is an art and a skill which takes years to develop and refine. Find a lawyer who has an understanding of the above points and you will have found a lawyer who has the necessary sophisticated negotiation skills to maximize your injury or fatal accident claim.