What does it mean to mediate a personal injury case? Mediation is a less formal process that allows parties to come to a private agreement about how a case should be resolved. Mediation can take place before or after a lawsuit has been filed.
In a personal injury case, mediation usually occurs after the parties have already obtained quite a bit of information about the injured person and his or her claim. Both sides come to the mediation prepared to discuss the strengths and weaknesses of the evidence, as well as the value of the case. Parties usually provide the mediator with packets of information in advance so that he or she has a good understanding of the case.
Mediations are usually held in an office conference room. However, if a lawsuit has already been filed, some courts require the parties to participate in a “settlement conference” with a judge, and those are held in the judge’s chambers. If the mediation is not a settlement conference, the mediator will usually be a local attorney who has several years of experience with personal injury cases, and who the parties believe will be fair.
While procedure can vary with each mediator, the parties are often placed in separate rooms at the beginning of the mediation. The mediator then travels from room to room as he or she discusses the case with each party. Sometimes the mediation will begin with a “joint session,” where all parties are in the same room together, but this is less common.
The mediation typically begins with the mediator speaking with one party to find out that party’s starting position. The mediator may ask questions to allow the party to “vent” his or her concerns and address any emotional issues that might get in the way of a potential settlement. The party can ask the mediator to keep specific information confidential, if necessary.
The mediator then repeats the process with the other side, and formulates a strategy for finding common ground between the parties. The mediator continues moving back and forth between the parties, often playing “devil’s advocate” to encourage the parties to be realistic about the weaknesses of their position. The mediator’s goal is to bring the parties to a point where they can come to a mutually agreeable settlement.
If the parties are able to agree, a written settlement agreement is drafted and all parties and their attorneys sign. This becomes a binding contract, and if one party does not keep its side of the bargain, the other party is often given the right to claim any attorney’s fees and litigation costs that are incurred in making the party stick to the settlement agreement.
If the parties are unable to agree, the case proceeds as if there had been no mediation. The events that occur during mediation cannot be admitted as evidence, and everything the mediator and parties say at mediation is confidential. This is because courts do not want parties to be penalized by the jury for making settlement offers which may or may not include admissions of fault. If mediation fails, the parties are free to mediate again at a later date if they feel that it will be beneficial.
The primary advantage of engaging in mediation is that it gives the parties more control over how the case is resolved. Also, a settlement agreement cannot be appealed. The disadvantage of mediation is that all parties have to give up something to achieve a settlement—a plaintiff who settles may not get as much money as if the case had gone to trial. However, sometimes there are more than monetary considerations which made a settlement attractive, such as the poor health of a party or important witnesses, the stress of going through trial, and litigation costs.