Many personal injury cases settle before a lawsuit is actually filed. In turn, most personal injury cases that are filed settle at mediation prior to trial. Mediation is an important tool for resolving cases at a point in the litigation prior to exorbitant case costs are incurred. However, most clients have only a vague understanding of the mediation process.
What is Mediation?
Mediation is a settlement conference. It utilizes a mediator. However, the mediator’s job is specific. The mediator is not the Judge. The mediator’s job is not to tell the parties what the case is worth. The mediator’s job is not to make the parties settle. The mediator’s job is to encourage settlement. This is done through shuttle diplomacy. An effective mediator will point out legitimate reasons to settle the case; generally and case specific. An effective mediator will give parties a realistic evaluation of the positives and negatives of the case. An effective mediator will persuade the Plaintiff to accept less in settlement and a Defendant to pay more. An effective mediator knows when to be encouraging and when to rattle a cage. Sometimes mediators are former Judges. Sometimes they are retired attorneys. Others are active attorneys who only act as a mediator part time.
How does Mediation work?
The process of mediation is generally uniform. The parties congregate together with the mediator in an opening session. The mediator explains the process and introduces the party. Then, the Plaintiff’s attorney gives an opening statement, outlining the Plaintiff’s view of the case. The Defendant’s attorney then follows with the Defendant’s presentation of the case. After opening statements, the parties split up and sit in separate rooms. The mediator usually visits with the Plaintiff first and gets an opening demand. The mediator then shuttles between the two parties/rooms carrying demands and offers between the two parties. Sometimes the parties will want to know some justification for a demand or offer and sometimes the parties will argue about different points of law or fact through the mediator. A mediocre mediator will merely shuttle between the two parties carrying demands, offers and the occasional argument. However, an effective mediator will cordially nudge the parties closer and closer to settlement by artfully pointing out weaknesses in the case. Further, an effective mediator will convince both parties to reassess their expectations throughout the process.
The best thing about mediation is that it brings closure, certainty and some control over the outcome. A trial is expensive. A trial is unpredictable. A jury may or may not be convinced by your case. Further, at trial, a party has no control over the ultimate outcome. While some cases need and must go to trial, mediation can be an effective tool for resolving disputes.