As someone who has done hundreds of these mediations (and 4 in the last 2 weeks), I can attest that results can be all over the place. It is hard to generalize from once case to the next because the issues are different. I cannot speak to your situation, but sometimes what seems like a lowball offer is actually in the zone of being reasonable because of other factors that affect the risk profile of your case. For example, if there is a change that you could win WSIB, then I would expect the insurance to want to lowball in your situation because if you won the WSIB, then they would owe you nothing.
If they believe that you have a good chance of winning WSIB, then it would make sense they would only be willing to pay a small percentage of the overall value. What benefit is there for them to pay a large amount, only to have you win your WSIB? In that case they will have overpaid and the lawyer and claim rep will get in trouble. We had this issue come up in a case this year and the insurance eventually conceded that they risk of my client winning WSIB was low so, they were willing to pay a much higher amount.
In a case like this you need legal advice on the actual chances of success on the WSIB and that risk profile will dictate what is a good or lowball offer. Sometimes, the best thing to do is to wait for the outcome of the WSIB appeal then you will know one way or the other. If you settle the LTD case first, both you and the insurance co are are taking a risk.
Discuss it with your lawyer. It is common to try a mediation because you can never know for sure before you get there what the other sides position will be.
I agree the negotiations leading up to the mediation can be useful, but often this is impractical because it is hard to get the other lawyer and the claims rep to focus on the case. Also, the context of a mediation will cause them to make better offers than you can ever get in a back and forth over the phone, for many reasons that I won’t go into now.
I will end by saying there is a power you take back by walking away from a mediation and I wish more of my clients would do this. They will now know that you are not willing to jump at the first offer and this sets you up going forward as negotiations will continue leading up to the discovery and afterwards.
Disability Lawyer with Resolute Legal
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