Mediation is defined as “the attempt to settle a legal dispute through active participation of a third party (mediator) who works to find points of agreement and make those in conflict agree on a fair result.” (Law.com Online Legal Dictionary). In an injury case, you and your attorney will meet with the opposing attorney, and usually a representative from the defendant’s insurance company, to settle the case. The mediator chairs the discussions.
Mediation statistics reveal that the process often succeeds more than 80 percent of the time, depending upon the subject matter. When mediation fails, it does not mean that the case cannot settle at a later date when the parties have shared additinal information.
Here is what a plaintiff can expect in a personal injury mediation:
- Some mediators will ask for opening statements by the parties. If the defense gives an opening, it will likely challenge your view of the facts and/or the value of your case. Even though the other side is there to settle, they will likely begin with an opening statement that may seem to indicate otherwise. You should not be discouraged by this as it is routine. I do not ask the parties for opening statements.
- Because individual plaintiffs are not familiar with the “process” of mediation, they often feel offended after the first few offers that are perceived to be low. It is wise to resist the temptation to leave the mediation. Your patience in letting the process of negotiation unfold will likely be rewarded.
- Expect to hear jargon you may not be familiar with, such as conditional offers, bracketed offers and subrogation. Your attorney will know what all of this means. Don’t hesitate to ask him or her for an explanation when you hear a word you’re unfamiliar with.
- Expect the process to take hours, maybe even a full day. Getting two sides of a dispute to agree to a “one size fits all” solution is not an easy task. It may take some time.
- Sometimes, mediations begin with a joint session where all of the parties meet in the same room to outline the case for the mediator. After that, the parties move to separate rooms and the mediator shuttles back and forth with offers, demands and other information. This is referred to ascaucusing. If the mediator seems to be spending more time with the other side, take heart–she’s trying to get them closer to your way of thinking. If the defense attorney and the insurance company representative have already met you, I generally do not have joint sessions.
- Expect to compromise, if you want a settlement. A settlement is not a victory nor a defeat. It’s a compromise and compromises involve giving up wants in order to meet needs. Before your mediation, you and your attorney should discuss where you can compromise. I do not recommend drawing lines in the sand. Keep an open mind and be prepared to go beyond the compromises that you and your attorney discussed, if only a little, should circumstances warrant.
Mediation has revolutionized the legal system by empowering litigants to decide the outcome of their own cases. The jury does not know you or your case and they will not have to live with the outcome. Mediation is a way for you to determine the outcome. Go into any mediationunderstanding what to expect from the process.