Risk Analysis in Personal Injury Mediations

It’s well known that people do a poor job of anticipating their likelihood of success at a trial. Both plaintiffs and defendants often overestimate their chances of success when trying to settle a case and then take a huge hit when they insist on going to trial and a jury or judge has a totally different perception of liability and damages than the parties were separately counting on. Mediators can help the parties avoid these disappointments by offering to do some reality testing during a mediation.  If the parties are willing to engage in some reality testing everyone may benefit in the end.  Reality testing might look something like this:  are you willing to make a realistic assessment of your client’s interests and the risks of going to trial? How will your client feel if you get a worse result at trial than what is being offered at the mediation? Which elements of your case pose the greatest risk of losing the case? What is the percentage or likelihood of the judge or jury deciding against you?  Are you certain you’ll be able to overcome any inference of negligence on the part of your client at trial? How sure are you of your assumptions about your likelihood of success in this case?  Parties who are willing to engage in this kind of reality testing may be able to reach a settlement they hadn’t otherwise considered, and everyone can walk away happy.