Tuesday, June 05, 2012

The Insurance Companies' November Mediation Tactic

I learnt recently that it's an insurance company tactic to hold mediations in November. How interesting! Totally backfired on them with me.

When you're injured in a car crash (few of which are true accidents, and the one I was in was not), you make a claim on your insurance. Living in a no-fault province, I made a claim for what they call "accident benefits" on my own insurance. Accident benefits are for human injuries not vehicular injuries. Within the two-year window allowed under the then-legislation, and because of the nature of my injuries, namely the brain injury, I also sued the drivers. These two paths -- accident benefits and tort claim -- operate differently, but they both include mediation and they both end up with you the poor injured schmuck battling multinational insurance companies for enough money to get better and on your feet again. That is, after all, the (original) point of insurance: to get you back on your feet in case of (fill in the blank).

Anywhoo, part of that battle is the mediation. The court management system, or whatever it's called, mandates time limits for when things are supposed to take place. Excuse me a moment while I laugh myself silly. In reality, the lawyers call each other and negotiate the best time for all the lawyers (in my case one for me, two for them; and note, not the injured schmuck) which usually ends up being a year after the most recent event in the process. So when it came time for the first and again for the second mediation, I didn't take too much notice of the date other than it was one more year of waiting.

The final mediation under the tort claim, the final one either side could call before going into pretrial, was scheduled for November. My book Lifeliner had just, and I do mean just, come out, and I was exhausted. Plus I had been through mediations before, not just my own but also in other legal actions, so I wasn't too optimistic anyway. My lawyer prepped me. Biggest advice: keep mouth shut unless asked a direct question then answer only the question.

That is why when the insurance adjuster announced she had a train to catch back to London at 4:30 (as I recall) I didn't immediately say, "well, this is a colossal waste of my time," and walk out. I obeyed "show no reaction, keep mouth shut" orders.

You see, anyone going into mediation who is serious will be prepared to stay all day and all night if they have to, to make it succeed. She had just announced that the insurance company was not serious in negotiating with me. But as I've learnt recently, maybe that wasn't the message she had intended to send. Perhaps she was hoping to send the message that "you have something like seven hours to make a deal or we're walking away and you'll have no money for Christmas." That's the point of scheduling mediations in November apparently.

Too bad for them I didn't think like that, short-term that is. My life was on the line. What did I care about one more Christmas sans money for gifts? I was more worried about being able to pay for food and keep a roof over my head.

But this tactic must work against most injured plaintiffs because, as I've learnt, they use it often enough for it to be a recognized strategy. And I bet it helps that apparently most injured claimants haven't a clue how much it costs to live with increased medical and daily functioning expenses arising from a brain injury. I mean, the piddling amount I was offered during my first mediation would apparently be taken by most claimants with a brain injury. And I've heard some are happy with $8,000, two of which will go to the lawyer. I don't know what these people live on or how they manage to get better.

Maybe that's the other key insurance companies use against plaintiffs: when you're "mildly" brain injured you often don't know how badly you're functioning and doctors, for the most part, don't offer real treatments just panaceas. To get true treatment, you have to pay for it outside of medicare. But many don't know that or have access to that. So plaintiffs are enough out of it that they settle for little, thinking perhaps this is just free money to blow on a TV, when in fact, the only way back to health and life in society is hundreds of thousands of dollars for medical, pharmaceutical, psychological, occupational, technological, household help and treatment.

And so insurance companies play these kinds of strategies to manipulate plaintiffs into settling for less than they need. Way less.

I went through the charade that November day, so as not to be labelled uncooperative (another tactic, an accusation they will pull out in court or in pretrial), and left sans settlement. We went to pretrial, where the lawyers talked privately with the judge and I sat right next to the insurance adjuster while we waited in the largish hall with many empty seats. She moved. My tiny little revenge.

(The pretrial seven to eight months later failed too because I was still royally pissed at their behaviour in mediation and upset over the idea of trying to live on an impossible amount. A few more weeks went by before they got down to brass tacks.)

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