The recent New York Times business section article, “The Cost of Not Settling a Lawsuit”, by Jonathan D. Glater, touched on the finding that plaintiffs are far more likely to overestimate the value of a case than defendants are to undervalue a case. Although it’s difficult to make broad generalizations, personal injury cases make up a large number of the civil cases brought in state courts. In those cases, the plaintiff is likely to bring suit once in a lifetime. An individual defendant, too, is likely to be sued only rarely. Yet the defendant who has insurance coverage will be provided with a defense (and indemnity) by a insurer who is a repeat player.
Most important, when an insurer makes decisions about settlement, they are largely (and, often, completely) business decisions. An individual plaintiff, however, is motivated by a perceived wrong, personally — and perhaps physically painfully — suffered.
Where one side sees apples and the other may see bananas, settlement can be difficult to achieve. Mediation can help parties to see the other side’s perspective and the limits of their own point of view. A broader view may make settlement both possible and appropriate.