Mediation in Personal Injury Cases
What is Mediation?
Mediation is a process where the parties involved in a dispute sit down with a neutral third person (the mediator) who is trained to help people come to a mutually satisfactory solution of their conflict. It’s important to know how personal injury mediation works. Until a dispute becomes an actual lawsuit, mediation is entirely voluntary; it only happens if both sides request it, and a settlement of the dispute through mediation is reached only if both sides agree to it.
If your case is sent to mediation, then your attorney and the insurance defense attorney will try to agree on who to use as the mediator. Once that’s done, they will schedule a date for the mediation. Oftentimes mediation is the first opportunity where the parties can meaningfully sit down and discuss the merits of case in an attempt to reach a settlement through negotiation. While mediation is often productive, mediation can fail if the parties are not properly prepared of what to expect.
Who is Present at Mediation?
Those present at the mediation are typically the Plaintiff (the injured party), the Plaintiff’s attorney, the Defendant’s (the one who caused the injury) attorney, and the Defendant’s insurance adjuster (the one who makes the final decision as to whether to settle the case). Many times, the Defendant does not come to the mediation because it is ultimately up to his/her insurance company to make the decision as to whether or not to settle the case. The final person who attends the mediation is the mediator. The mediator must be certified and is usually a retired attorney or retired judge. It is best to find a mediator who has practiced in the area of personal injury so that he/she has a better understanding of the area of law.
How Does Mediation Work?
Upon arrival, the mediator introduces themselves to all of the parties. They also ensure everyone knows each other and their roles in the case. After introductions, the parties and their lawyers will gather in conference room together for opening statements. You and your attorney will be on one side of the table. The defendant, the defendant’s attorney, and usually a representative from the defendant’s insurance company will sit on the other side. The mediator, who is neutral, will sit at the head of the table.
Your attorney will present your side of the case. The defense attorney will then make statements that will challenge your view of the facts and the value of your case. After the defense’s opening statement, the mediator breaks the parties into two separate rooms. The mediator will go back and forth between the two rooms carrying information from one side to another. The mediator will talk with you and your lawyer. They will ask questions and try to learn more about the case so they might be able to help persuade the other side to pay you more money. At the same time, the mediator’s job is to share with you some weaknesses they see in your case as well.
How Long Does a Mediation Take?
A successful mediation can take anywhere from a few hours or a full day. In our experience, the average mediation time is between 4-6 hours. The process takes time because the mediator will be meeting privately with the parties in separate rooms in order to gather information about the case. The mediator will deliver offers and demands back and forth between all interested parties.
Are Mediation Negotiations Confidential?
Yes. After everyone has been introduced, the mediator passes around a document everyone signs agreeing to keep negotiations at the mediation confidential. This means that each party can agree or admit things they otherwise wouldn’t at a trial. For instance, the defense may say they are not contesting fault at mediation (which means admitting full liability for mediation only) but could fight fault at trial. Or, the defense may offer a settlement figure. If the case doesn’t settle, neither side can tell a judge or jury about one side’s willingness to settle.
What Happens After Mediation?
If you resolve the case at mediation, you draft a settlement and sign it the same day. The agreement is enforceable. There’s paperwork to do to close out the case. You may need to type the agreement up officially for the court to sign it an enter it into the court record. However, when you reach an agreement at mediation, you can breathe a sigh of relief and look forward to collecting your judgment. If you don’t reach an agreement at mediation, the case stays on track for trial.
It is very important that your personal injury attorney have extensive experience conducting mediations so that you can have the best opportunity to settle your case for the maximum amount possible. If your personal injury claim has been sent to mediation, let the injury attorneys at Suarez & Montero review the circumstances of your accident and discuss your legal options. Our attorneys are ready to provide proven legal representation in pursuing your claim and stand ready to protect your rights.
Contact us today at 786 Lawyers for a free consultation!
