The answer is “Yes.”

A mediation is an opportunity for both sides to sit down with an impartial judge to see if a settlement can be reached before going to trial. Each side pays a fee to the mediator to participate for a few hours of their time.

Mediation is an extended negotiation and settlement opportunity.

The injured victim's attorney has a chance to explain to the mediator why he believes their side has merit.

The defense on the other hand has the chance to explain to mediator why there's very little liability or damages.

The idea behind mediation is that it allows each side the opportunity to try and settle the case early and limit the amount of damages that are paid out. Otherwise, both sides take a significant gamble by going to a jury and having an unknown outcome that could result in years of appeals and hundreds of thousands of dollars in expenses.

Injured victims like the chance to resolve their case without the need to go to trial. Defense lawyers and their insurance companies also like knowing that the case can be resolved, usually, in one day with a definite guaranteed payout that could be significantly less than a jury might award later on.

  • What happens though if the mediator is not able to achieve the desired result?
  • What happens if the client is too demanding and greedy?
  • What happens if the defense lawyer and their principals do not believe your case is worth what you are asking?

Can you walk away from the settlement negotiations and proceed to trial?

The answer is yes.

Mediation is a voluntary procedure where both sides come to the table ready to negotiate in good faith. If the two sides are too far apart and there is very little to compel them to get closer, then either the negotiations will fail or one side will get frustrated and fed up and bust the mediation.

Many times when an offer has been made, there will usually be a provision attached that if you walk away from this negotiation now, all offers are off the table. This is designed as an incentive to keep you at the negotiation table in order to try and reach a solution before calling it quits.

This strategy can sometimes work, and other times it can backfire. If the settlement numbers are not in accordance with what you and your attorney believes the true value of your case is worth, then you may have to seriously reconsider whether you are accomplishing anything of value by continuing to negotiate during this mediation. Together with your attorney you must weigh all the risks and benefits associated with walking out and the possibility that such an offer may not come up again.

Gerry Oginski
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NY Medical Malpractice & Personal Injury Trial Lawyer