During the course of your personal injury case, the judge may order mediation or your lawyer may recommend that you voluntarily participate in mediation. Learn about how personal injury mediation works. Here are 10 questions clients frequently ask about mediation.
What is mediation?
This may vary somewhat depending on the mediator’s style. Some mediations begin with a group session, in which the lawyers present an overview of the case, similar to an “opening statement” in a trial. Many mediations today skip the group session. The two sides are placed in separate rooms. The mediator then shuttles back and forth between the two sides, presenting proposals and counter-proposals, and encouraging compromise.
When does mediation usually take place?
A mediation generally occurs during the course of a lawsuit. The judge may set a deadline for the parties to participate in mediation. This is usually after some discovery has been completed. Often, depositions have been taken. By this time, both sides know a lot about the strength and weaknesses of each other’s case and the situation may be ‘ripe’ for settlement.
Where will the mediation take place?
Mediation generally takes place at the mediator’s office or at a similarly private and neutral location. Mediations are sometimes held at the offices of one of the attorneys in the case.
Who will be present?
Two “teams” will be present: (1) You and your personal injury attorney; and (2) the defendant, the defendant’s attorney, and a representative from the insurance company who has authority to settle the case.
Who will be the mediator?
Both your lawyer and the defense lawyer, together, will select the mediator. Often, the mediator is a retired judge or a lawyer with specialized training in dispute resolution. Sometimes the judge will designate a specific mediator.
How does personal injury mediation work?
While there may be some variation depending on the mediator’s style, mediation generally begins with a group session, in which the lawyers present an overview of the case, similar to an “opening statement” in a trial. After the group session, the teams go to separate rooms. The mediator then shuttles back and forth between the teams, presenting proposals and counter-proposals, and encouraging compromise.
What is my role at the mediation?
Your primary role is to consult with both your attorney and the mediator regarding offers made by the opposing party, and counter-offers you make. Any settlement must have your approval.
How long will mediation take?
You can schedule mediation for a half-day or even a full-day. Negotiations often continue as long as it looks like progress can continue to be made. Some mediations conclude successfully in hours. Each case is different.
What are the advantages of mediation?
The advantages of mediation include the following:
- You have a direct involvement in the negotiations.
- You have more control over the outcome of the negotiations.
- The presence of a neutral third-party can help keep the dialogue constructive and subsequently move the parties toward agreement.
- It is confidential.
- If the mediation is successful, you save the time, money and emotional investment of a trial.
- There is no penalty for failing to reach an agreement; your case goes on as before.
Are there any disadvantages to personal injury mediation?
Some potential disadvantages of mediation include the following:
- Mediation is not a court proceeding. So, court rules about witnesses, evidence, and procedure don’t apply. There is no way to force the other side to negotiate or do anything. Anything achieved is voluntary on both sides.
- There is no guarantee of success. You may invest time and money in the mediation, but still be facing a trial when it is all over.
