In every Florida personal injury case, including in all injury claims filed by cruise ship passengers in Federal Court, the judge will order the parties to attend a settlement conference known as a mediation. Each judge is different; some force the parties to sit down early on–before unspeakably huge amounts of time and money are spent in litigation–to see if the claim can just be settled. Others wait to the last minute, mere days before trial. Either way, both the claimant and defendant at some point will have to attend mediation.
For years I have dreaded these meetings, where my clients and I are forced by court order to sit in some fancy conference room, across from a smug insurance defense lawyer and her claims adjuster, separated by a few feet of mahogany and a cup of cold coffee.
What is a Mediation?
Sitting at the head of the table is a Court-Appointed Mediator, someone who is usually an experienced and semi-retired trial lawyer, former judge, or in some cases just a lawyer who took a seminar to get certification. In fact, the Florida Bar offers courses and a detailed manual on how to conduct a mediation. As in everything in life, there are a few great mediators and many poor ones.
At a mediation, nobody decides who is wrong or right or how much or little money a case is worth. Rather, each side makes a presentation to the mediator. Those presentations can range from elaborate PowerPoint shows with animated computerized graphics, to nothing. My fifteen- year-old daughter Sara Rose helped me last week by creating a mediation presentation that used an old CNN story about a rare medical condition called RSD (Reflex sympathetic dystrophy) to educate the mediator in a cruise ship injury case about the alleged injury of a lady we are trying to help. The case settled.
The presentations also provide the defense lawyers a chance to speak directly to and at the plaintiffs in a manner that would be prohibited in any other setting, since everything that is said during the meeting is privileged and confidential. They often look the plaintiffs in the eyes and tell them how little their cases are worth and how they will lose at trial. It can be quite powerful and terrifying for an unprepared plaintiff.
Following the presentations, the parties are separated into different rooms so that the mediator can speak privately to each side. That process is called caucusing, and the mediator shuffles back and forth between the rooms, conveying offers and counter-offers that would remind anyone who has ever been to a bazaar or flea market of the haggling over a Persian rug.
Sophisticated negotiation techniques are used, like offering to “bracket” offers. Scenarios play out, such as if you go to X, then I will go to Y, in an effort to figure out just how much or little one side is willing to take.
How to Settle With Mediation
Most mediations I participate in are not successful; in other words, they do not result in a settlement. Defense lawyers and I very rarely if ever agree on the value of a case. I always think the case is worth more than they do, or more than their clients are willing to offer to pay.
I have said for years–in response to pompous defense lawyers, who pretend to know exactly how much a jury will return in a verdict for in a particular case, while making a demeaning offer to my injured client–”If either you or I really knew what the verdict would be, neither one of us would be sitting here right now.” In other words no one will ever know what a given jury will do with a given case, as that is nearly impossible to predict in most cases, except for those instances when the damages are catastrophic or liability is weak.
Why Mediations Fail?
I used to blame the process, the mediator, or stubborn clients. I have now turned my focus on myself. I closely watched a talented lawyer and friend of mine named Bob Brown settle case after case at mediation. To be sure, he used to be a defense lawyer and has the All-American charm usually reserved for quarterbacks and talk show hosts. But there had to be something more. How could he settle cruise ship accident cases at mediation while mine would always reach impasse, resulting in years of litigation, trials, and appeals?
What did he know that I didn’t? I asked him, and he told me simply that sometimes, for some people I am trying to help, it is better for them to get the case behind them, even if it may mean taking less today than a jury might give three years down the road. A trial is not always in the best interest of the client, and by becoming friends with the defense lawyer, I can accomplish more than by always being on the attack.
When Bob first told me he would take the defendant’s lawyer out for lunch, dinner, or drinks to discuss a case, I was baffled. How could I possibly break bread with the “other side”? But like any great diplomat, he showed me the power a sit-down can have towards reaching the ultimate goal of serving the client. For that lesson, I am grateful.
Cruise Ship Accident Mediations
In cruise ship litigation, the dynamic is much different than in a typical slip and fall at Walmart or Publix or a rear-end car accident, because defendant cruise lines like Carnival, Royal Caribbean, Norwegian, or Disney have such extraordinary resources at their disposal and can afford to pay most verdicts, literally from the profits they make in about six minutes in their respective casinos.
If you have been injured aboard a cruise ship, call our ship accident attorneys. I would like to help you. I have successfully helped people in claims against Carnival, Royal Caribbean, Disney, Princess, and Norwegian Cruise lines. We proudly provide free initial no-fee/no-cost consultations via SKYPE, email, or Toll-Free at 1-866-597-4529.
