Current circumstances have forced many litigants into uncharted territory regarding settling cases through Alternative Dispute Resolution (ADR - both mediations & arbitrations). Even those attorneys and claims professionals who have typically utilized ADR in the past have seemed uncomfortable to surrender their right to do their negotiating “in-person”. Well, with jury trials on hold for an unknown period, the future is now as they say, and remote or virtual mediations and arbitrations are here to stay.
Attorney Assists (always a proponent of web access hearings) has stayed on the cutting edge of this development and have continued to help parties resolve their cases at mediation. In a recent case, while working for the defense, our ability to review existing and newly obtained medical records during the hearing helped a defense team understand their exposure and obtain a solid resolution.
In the case in question, the insurance company had taken the position that the injuries were all bogus and that any claims as to head injuries were concocted weeks after the accident. The defense had even retained a medical record review company that provided a written analysis of the medicals and concluded that there was no basis for any head injury. A review of the medicals and the discovery materials, in our opinion, clearly demonstrated that plaintiff’s counsel was setting up a TBI case. The claims staff relied on their medical review to set their strategy.
This case involved a motor vehicle accident where the defendant was 100% at fault and had a Million Dollar policy in place. The carrier firmly believed that on causation issues, this case was no threat to their policy limits. Medical specials exceeded 200K and we were now 3 years into the litigation. Going into the mediation the two sides were over 600K apart in their negotiations and seemed pretty dug into their positions.
Attorney Assists was brought into the case and received the medicals and other case documents the day before the mediation. Our job was to re-assess valuation and assist with mediation strategy.
A quick review indicated several problems with the defense position. First and foremost, the injured party had complained of a head injury in the emergency room. That fact was missed by everyone. Secondarily, in their report, the medical review team had wrongly concluded that annular tears were only degenerative in nature and omitted the possibility that a concussion could occur as a result of a whiplash injury. The lack of information and proper assessment had allowed defense minded individuals to “piggy-back” on the initial low level assessment that the plaintiff “was not hurt in this accident” and allowed otherwise well intentioned claims people to overlook the actual potential exposure.
There was a great deal of detail in our analysis and we also were able to provide the defense with many ways to attack the case during the negotiation process. It is always important for both sides to understand the difference between positions one can take during negotiation and those that will be allowed at trial and more importantly, valued by a jury.
In the end, this case settled for 300K, which we think was a solid result for both sides. You can never be too prepared.