Answer: Deciding whether to accept a settlement is a collaborative process between you and your attorney, but ultimately the decision is yours. Here's how we approach it:
Before and during mediation, we will have discussed what a fair value for your case might be (considering factors like medical expenses, pain and suffering, likelihood of winning at trial, etc.). We'll have a sense of what the nursing home might offer and what your bottom line is. As offers come in during the mediation, your lawyer will evaluate them and give you their frank advice. For example, if the defendant offers $X, your attorney might say, "I think $X is too low because of Y and Z, I recommend we make a counteroffer of $X+" or "$X is within the range we discussed; it's your call, but I believe this is a reasonable offer given the risks of trial."
We will consider questions like: Does the offer compensate you fairly for the harm done? Is it enough to cover outstanding medical bills or funeral expenses? Does it account for the pain, suffering, and loss your family experienced? We also weigh the risks of going forward. No trial is a guaranteed win – juries can be unpredictable. If the offer is, say, $, we'll consider what might happen at trial: Could a jury award more? Possibly, but they could also award less or even nothing. We also consider how long a trial and possible appeals would take (it could be another year or more). Accepting a sure thing now versus striving for maybe more later is a personal decision involving both your financial needs and your feelings about justice.
Your attorney's role is to give you expert advice and perspective, drawing on experience from similar cases. They will likely tell you the pros and cons of accepting any given offer. They might say, "This is the highest offer we've seen them make; it's a bit lower than we wanted but it might be close to what a jury would do. I'll support you if you want to accept or if you want to hold firm – let's talk about it." Or they might say, "This offer is far below what we consider fair. I advise we reject it and continue."
It's important to note there is no rush or pressure to decide in a split second. If you need a moment to think quietly, or to talk it over with a family member (we can call someone if you want another opinion from a spouse or sibling, for instance), that's okay. Mediation is dynamic, but we can usually take a little time to mull over an offer. The mediator might also help by giving input like, "In my experience, that's a solid offer" or "I think they have a little more room," but remember the mediator is neutral – they won't tell you what to do, just provide perspective if asked.
Ultimately, you make the call. Your lawyer cannot and will not agree to any settlement without your clear approval. If you decide to accept an offer, your lawyer will ensure you understand the terms and are comfortable with it. If you decide not to accept, that's okay too – we then either continue negotiating (if there's still hope of movement) or end the mediation (if we're at a final impasse).
One thing we often emphasize is: Don't settle unless you're satisfied with the outcome. You should feel at peace with the decision. It might not be a perfect number (settlements are compromises, after all), but it should be one you can live with. If you're very unsure, we might negotiate for more, or you might decide to walk away and take your chances at trial. We'll support you in whichever choice you make, and we'll give you our honest assessment to empower that choice. Our shared goal is to ensure that if you do settle, you feel it's a victory or at least an acceptable resolution – not a loss.