What is a Mediation?
*This is the seventh post in our series, The Life of a Personal Injury Case…. From accident to settlement or trial.
If your lawyer has advised that your case is headed to mediation, you may be wondering what that means and what to expect. Mediation is a structured settlement meeting designed to help both sides resolve a dispute without going to trial.
The Process
You will attend the mediation with your lawyer. The other party (often an insurance adjuster) attends with their lawyer. A mediator will lead the meeting. The mediator is usually an experienced lawyer with specialized training in facilitating settlements. While they do not make decisions or force a settlement, they act as a neutral third party to guide discussions and help both sides find common ground and voluntarily reach a settlement.
A typical personal injury mediation begins with all parties gathering in one room for introductions and opening remarks. After the introductions, the parties usually separate into different rooms. You will be in a private boardroom with your lawyer(s), while the mediator moves between rooms, relaying information, settlement offers, and counteroffers. Sometimes Mediations are held via virtual conferencing (e.g., Zoom). In those cases, your lawyer may ask for you to come to their office and the other party/mediator will be virtual. Where that is not possible, you and your lawyer will join the virtual conference separately and be placed in a virtual room together.
In advance of the Mediation, your lawyer will have prepared a Brief for the mediator and the other lawyer, addressing the issues in your case and setting out your position at the mediation.
Mediation is:
1) Voluntary: Both sides must agree to attend the mediation and are allowed to leave at any time. The parties are not forced into a particular settlement but reach it voluntarily with the assistance of the mediator.
2) Assistive/Non-Coercive: The mediator does not decide the outcome but helps the parties reach a fair and mutually acceptable settlement. The mediator may impart knowledge and information from their expertise in this area of law, communicate points of disagreement between the parties, and/or present options to the parties.
3) Informal: Mediations are more informal and relaxed than a court or discovery hearing. You can expect to spend most of the day in the boardroom with your lawyer. Plan to bring drinks, snacks, medications and any comfort items.
4) Confidential: Mediations are confidential. If you do not reach an agreement on any or all the issues, the discussions that took place cannot be raised or used against you in Court.
Advantages of Mediation
Mediation provides an opportunity for open dialogue between the parties, without strict rules of procedure, which allows the parties to reach a settlement in a comfortable, relaxed environment. The presence of the mediator allows the parties to explore settlement options openly. During mediation, the mediator gains an understanding of each party’s interests and positions and works to facilitate a resolution/settlement. This process is especially beneficial in complex cases or those involving multiple parties and issues.
One of the key advantages of mediation is its flexibility. Unlike a court decision, which is bound by legal remedies, mediation allows for creative settlement options tailored to the unique circumstances of the case.
The confidentiality of mediation encourages honest and open dialogue. As discussions in mediation remain private, parties may feel more comfortable making concessions they might otherwise withhold in a courtroom setting. The presence of the neutral mediator helps keep the conversation productive which is useful if previous negotiations have broken down or if the issues being mediated spark strong emotions.
Mediation is also significantly faster and more cost-effective than going to trial. The informal nature of the process also reduces legal costs, as extensive trial preparation is not required.
The outcome of mediation is more likely to meet the needs of both parties, given they are reaching an agreement rather than having a decision imposed upon them by a Court.
If you are considering mediation in your personal injury case, discussing the process with your lawyer can help you determine whether it’s the right path forward for you.
Carter Simpson has prepared this document for information only. It is not legal advice. You should consult Carter Simpson about your unique circumstances before acting on this information. Carter Simpson excludes all liability for anything contained in this document and any use you make of it.