What Is Mediation in a Personal Injury Case?
Posted on Wednesday, November 10th, 2021 at 10:22 pm
Most personal injury cases reach a resolution before the case gets to court, or even before a lawsuit is filed in the case. One of the ways that personal injury claims are resolved or settled involves a process known as mediation.
What Is Mediation?
Mediation refers to a type of alternative dispute resolution in which settlement negotiations between the parties are assisted by a neutral third party. This neutral third party, known as a mediator, helps the parties try to reach a mutually acceptable resolution of the case by overseeing the exchange of information between the parties and the bargaining or negotiating process. However, the mediator does not make any decisions or resolve any issues or disputes.
Both parties must agree to participate in mediation. When they agree to go to mediation, the parties often will execute a contract, which may set forth the procedures the parties have agreed to for their mediation, including who will serve as the mediator, when and where the mediation will take place, and how the costs of mediation will be covered.
Mediators guide negotiations by clearly framing the issues and disputes in the case. Mediators will try to get the parties to see common ground between them. The mediator will talk with each party to identify the strengths of the other side’s case and/or the weaknesses of the party’s own case. The mediator may also try to temper unrealistic expectations that either party may have about a reasonable or fair outcome. The mediator might also offer creative suggestions that both parties may find acceptable in a settlement.
Mediation vs. Negotiation
Mediation is considered a more formal, structured type of negotiation. In informal negotiations in a personal injury case, the parties will talk through the issues and try to reach a settlement agreement on their own, without the assistance of a third party. Informal negotiations may precede mediation. When the parties reach an impasse in informal negotiations they may feel that they have a better chance of reaching a settlement with the assistance of a mediator.
Mediation vs. Arbitration
Mediation differs from the other common form of alternative dispute resolution, arbitration. Mediation serves as a form of settlement negotiation, while arbitration functions more like, and takes the place, of a trial. Most importantly, mediation differs from arbitration in that the parties are not required to reach a settlement in mediation, whereas, in arbitration, the decision that is reached at the end of the proceedings is usually binding on the parties, much like a court judgment is.
Do You Have to File a Lawsuit to Go to Mediation?
Mediation may be initiated by the parties prior to filing a lawsuit in a personal injury case. Parties may also try mediation after a lawsuit has been filed but before trial. In some courts, judges may strongly suggest that the parties attend mediation before the trial begins.
What Happens During Mediation in a Personal Injury Case?
What happens in a mediation in a personal injury case may vary depending on the complexity of the issues or evidence, the scheduling and convenience of the parties, and the personal style of the mediator. Most mediations occur during a scheduled session that takes place over several hours or a whole day. Mediations may take place in person, although increasingly many sessions are conducted over the phone or videoconference. A mediation may begin with each party (or their attorney) presenting a brief statement of their side of the case to the mediator. Parties may also submit documents and evidence to the mediator prior to the session to help the mediator become familiar with the facts of the case.
If the mediation begins with the parties in the same room or on the same call, the mediator will usually have the parties go to separate rooms or calls so that the mediator can have honest and open conversations with each party without worrying about the other party hearing potentially confidential information. The mediator will move back and forth between the parties, focusing the issues for the parties, offering suggestions for settlement, and conveying counteroffers between the parties.
What Happens If Mediation Fails?
If a party to a personal injury case agrees to participate in mediation, they are not required to agree to a settlement. Parties may walk away from mediation at any point during the process. If the parties have not reached a settlement at the end of a particular mediation session, they may choose to schedule additional sessions, especially if the mediator thinks that a settlement can be reached in future sessions between the parties.
However, if the mediator or one of the parties thinks that further negotiations will be unlikely to bring about a settlement, the case can proceed to court and to trial, or the parties may instead choose to resolve the case through arbitration.
Contact Our Firm for Help from an Experienced Personal Injury Lawyer
If you are considering mediation in your personal injury case or if you have been invited to participate in mediation in your case, call the Beaumont personal injury lawyers of Portner Bond, PLLC at (409) 838-4444 today for a free, no-obligation consultation. Learn more about the mediation process from one of our personal injury lawyers, and let’s discuss how our firm can help you.