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Allen, Flatt, Ballidis & Leslie, Inc.

Defense attorney reveals mistake that could cost a client at mediation. How to maximize your settlement of a Los Angeles or Orange County auto accident case.


In an informative article in the law journal Advocate, October 2009, author Leonard Levy interviewed a number of defense counsel and adjusters on the factors that would likely reduce their willingness to offer the full value or earmarked funds in settlement of the case.
These adjusters and lawyers requested anonymity but were willing to cooperate in giving their opinions.  Here is a summary of thoughts and my observations as well.

1.  Defense attorneys and adjusters have agreed that when they do not have full settlement authority, even if you convince them that they should offer more money, they have the convenience of saying that their hands are tied.  Our office has long known that the adjuster must either have full settlement authority or have access to and can make the necessary phone calls to obtain approval of the recommendations.  Even though a higher authority may only be available by telephone, it can be effective when a mediator actually asks to speak to that authority and confront the authority on their refusal to offer additional funds.

2.  The plaintiff should also be present at mediation even if it means a flight and hotel stay.  I cannot tell you how often that we insist our clients attend mediation even if it is “inconvenient.”   It shows the client’s determination and resolve on a case.  The author points out that many adjusters meet the plaintiff for the first time at mediation, and a well-presented plaintiff can actually make the adjuster more than willing to assist in the resolution and settlement of the case.

3.  The author points out, and I agree, that a demand should be made before the mediation to allow the parties to establish their positions on settlement.  It does little good for me to pay by the hour for a mediator to convey a plaintiff’s first demand and then have the mediation end with the conclusion that the adjuster has to go back to the company to put the demand through “committee.”  Therefore, an early demand is important, as is the response to a demand.  The parties should really be at an impasse and mediation is attempted to break the log jam of negotiations.

4.  The author points out that the right opening demand is important, and quoting from a past precedent of one of the Los Angeles bar associations, “hit the high end of reasonable.  You want to keep the negotiations going.”  The last thing you want to do is start so high that the mediation is going to have virtually no value, but so low that you don’t leave yourself room to negotiate.

Lastly, your attorney should be well prepared for the mediation, and before it is conducted, disclose the entire economic and non-economic damage basis.  It does little good to attend mediation without preparation, or worse, to throw a surprise on an insurance company at mediation.  Not only do you typically get the “committee” meeting delay in a response to your mediation demands but often adjusters and defense counsel feel embarrassed by the fact that this information was not obtained by them before they asked for permission to attempt to settle the case.

Therefore, it is very important for a personal injury attorney in California to know his or her case, prepare a demand letter outlining the specific claims and damages, and outline the basis of any general damages they are seeking for you.

If you have a case, and you are being asked to participate in mediation, get help from an expert.  You should retain an expert attorney in personal injury claims to assist in your mediation to maximize the amount of recovery available to you.  Call us, we can help at 1 888 752-7474.

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