Rolling The Dice At Mediation
The new law denying injured persons any damages if they are more than 50% at fault could cause the plaintiff to shoot craps in mediation or negotiation.
The injured plaintiff now faces the risk of taking and recovering nothing unless she can convince an insurance company or a jury that she was not more than 50% at fault–a difficult if not impossible task in many cases where there is no way to objectively predict how a jury would apportion percentages of fault.
This will steeply compromise the plaintiff’s bargaining position in negotiation and mediation, which is precisely what the sponsors of the bill wanted. Faced with the prospect of getting nothing, plaintiffs may feel compelled either to accept a fraction of what they deserve, or risk losing it all.
