A key part of any personal injury case is negotiation, which involves your lawyer speaking and working with claim adjusters and insurance lawyers to try to resolve your case quickly and fairly. Many injury claims end with a negotiated settlement as opposed to a court verdict.
Of course, experienced personal injury lawyers are more than sharp negotiators; they will know when it is best to take a case to court, especially if negotiations are falling through. That combination of skills will help you pursue (and hopefully achieve) a fair resolution to your case.
What Is Negotiation?
At its core, negotiation is a discussion aimed at solving a dispute through compromise. In practical terms, it usually involves offers and counteroffers between the two parties.
A negotiation may be friendly, such as an employee negotiating for a pay raise, though the parties have opposing interests in an injury case. After a car accident, for instance, the injured crash victim’s goal is to get the greatest compensation possible, while the insurer would prefer to pay nothing.
Still, both parties have a mutual interest in resolving the case and moving forward. For example, a tenant who slips and falls in their apartment complex’s parking lot may sue their landlord. A negotiated settlement could allow the parties to get along for the remainder of the lease.
You can contrast negotiation with litigation. During a negotiation, the goal is compromise, whereas the goal of litigation is winning. Under the American adversarial court system, each party will present its best case, and an impartial judge or jury picks a winner based on the law and facts.
The primary drawback of litigation is that judges and jurors are unpredictable. Neither side can predict with certainty how the case will end. Negotiation allows parties to avoid the uncertainty of a jury verdict and have at least some input into the case’s resolution; that is the reason why only around 5% of personal injury lawsuits ever reach trial.
Points Where Negotiation Occurs During An Injury Case
Negotiation can happen at several points during a case. Injury cases start with an insurance claim, which the insurer will assign to a claims adjuster. The latter will investigate whether the claim falls within the parameters of the at-fault party’s insurance policy, and if so, they will offer a settlement.
That initial offer, however, is nothing more than a negotiation tactic, as it usually undervalues the victim’s losses. If the claimant accepts the offer, the insurer has saved money. If the claimant (or their lawyer) makes a counteroffer, the adjuster has room to negotiate.
Specifically, an at-fault party is liable for a victim’s economic and non-economic losses if negligence is proven. Economic losses are defined as the financial costs of the injuries, such as lost wages and medical treatment costs. Non-economic losses cover the human price of the injuries, such as pain, mental anguish, and disability.
If the parties agree on liability and the victim’s economic losses, the only things to negotiate are the non-economic losses. The parties will set out their positions on these losses based on the severity of the victim’s injuries. The goal is to reach a number that both sides can agree upon.
Since both parties have adverse interests, they can go back and forth with offers and counteroffers without ever arriving at an agreed-upon solution. However, the two will also be aware that a settlement should eventually occur; endlessly delaying will only increase the risk of the victim filing a lawsuit.
Ultimately, a settlement in the case will involve a payment by the insurer to the victim for the agreed amount in exchange for a claim release, which prevents the victim from ever asserting the claim again against the opposing party.
Assisted Negotiation
The problem with negotiating a settlement is that both parties must agree. A stubborn opposing party might be unwilling to compromise or negotiate in good faith, halting any progress in the negotiations.
In these cases, assisted negotiation may break the deadlock. The State of Florida requires settlement conferences in medical malpractice cases, and judges handling many other types of injury claims mandate them.
These are forms of mediation conducted by a judge or magistrate, who usually separates the parties so they can speak openly and frankly. The parties explain their positions while the mediator looks for common ground, encouraging the two to compromise as they relay offers and counteroffers between them.
Parties can often overcome their animosity and distrust by negotiating through an impartial intermediary. And that shift in attitude can lead to a settlement. If a court does not order the parties to hold a settlement conference, the parties can agree to private mediation to resolve their cases.
Contact Us To Discuss A Negotiated Settlement In Your Case
A negotiated settlement is often the quickest way to get fair compensation for your injury-related losses. Gross & Schuster Injury Lawyers can help you today. Contact us to schedule a free consultation at (850) 434-3333 to learn about how we can resolve your case through negotiation and advocacy.