Pre-Litigation Mediation and Settlement in Personal Injury Cases

Many personal injury victims are surprised to learn that they may settle their claims without needing to file a lawsuit. In fact, many personal injury cases are settled during the beginning stages of the claim (some lawyers would argue this is becoming more and more rare). Early settlement may occur when there is little or no question that the other driver is liable for causing injuries to the personal injury victim, such as when the driver has admitted responsibility. It may also happen when liability is still in question, but the personal injury victim’s injuries are especially severe, or if there is insufficient limits of liability coverage.

During the pre-litigation process, a victim’s personal injury lawyer can verify that the other person has insurance coverage, and also whether the victim’s own insurance policy provides coverage for the accident as well. A victim’s personal injury lawyer can also investigate the facts surrounding the accident. In doing so, he or she may review the police report, interview the witnesses, and inspect the scene of the accident in order to determine how the accident occurred and who is at fault. He or she will most likely review your current and prior medical records, to prove that your injuries stem from the accident and to understand how they relate to any preexisting medical conditions.

Once this has been done, a victim’s personal injury attorney can begin to determine what the victim’s legal claim may be worth financially. This is generally expressed as a range of values because of the uncertainty of settlement negotiations and trials. At some point, the personal injury attorney may propose a pre-suit settlement to the insurance company in an effort to get the compensation the victim is entitled to without having to file a lawsuit in the court system. Generally, the insurance company will respond with either an offer to settle or a request for additional information. That additional information may include a statement from the victim, copies of person’s medical records and tax returns, an independent medical examination and/or any other information the insurance company feels is important in understanding the victim’s case. Once the insurance company has all of the necessary information, it should be in a position to make a settlement offer.

Sometimes, but not often, the parties will agree to mediation before a lawsuit has been filed. The mediation may come at the suggestion of either the insurance adjuster or the personal injury victim’s lawyer. Mediation allows both sides to present the relevant facts of the case and the extent of the costs and damages to an independent third party mediator who will work to help the parties agree on a settlement. These independent mediators are lawyers or retired judges with special certification as mediators and who have experience with the laws and issues that are important in the case. If no settlement is reached at mediation, the case can then proceed to litigation. The failure to settle the case should not affect the personal injury victim’s right to continue the case.