Understanding Mediation for Personal Injury Victims
At the CMC, the court will set up a mediation or arbitration date. These are meetings between both sides, where a judge or professional mediator helps both sides try and settle. The idea is to come up with a dollar amount and avoid a trial and more expenses associated with litigation.
- Mediation, as defined in the dictionary, is negotiations conducted by impartial parties to resolve issues. There is a more particular meaning of mediation when you are referring to a case involving personal injury.
It involves specific procedures, expectations, and actors. Below is a closer look at the probable outcome of mediations and what a person can expect.
Below are relevant members that are usually involved in mediation and what can be expected from these members.
- The Mediator – A personal injury case mediator is someone that is impartial to the case and has obtained a certificate for dispute resolution. In many situations, this is a judge or a lawyer that doesn’t have an active interest in the case and an understanding of personal injury law. The fee paid to the mediator is typically a flat fee determined by how many hours were required for the mediation. And then it is divided between the plaintiffs and the defense. A mediator’s interest for resolving disputes often results in more intervention work, as their reputation improves with each successful resolution.
- Counsel for Defendant – This is the lawyer or lawyers that represent the defendant. They generally have a thorough knowledge of the aspects of the case and will often lead to opening arguments that are in the best interests of the defendant. They also take part in the negotiation process for settlements the defendant may seek.
- Insurance Adjuster or Carrier for Defendant – A representative (adjustor) for the insurance of the accused company will represent those that are insured. In some cases, the defendant attends this part of the mediation, and in some situations, they do not. The adjuster will usually participate in mediations, but not always. They typically have the last say on the amount of settlement that is to be offered, and they are also in charge of accepting a demand for a settlement.
- Counsel for Plaintiff – This is a personal injury lawyer that represents you the plaintiff. They are typically well informed on all aspects of the case, and they present the defense with a short opening presentation about the strong points of your case. They also usually lead negotiations for the settlement and then will defer this to you.
- Plaintiff – This refers to the individual or their legal representative that brought the claim about. Legally, the plaintiff has the last word in determinations made for amounts demanded, as well as decisions to accept settlement amounts.
What Should I Expect in a Mediation?
Below is a step-by-step explanation of the usual mediation process.
- The parties involved enter the room – Both the defendant’s and plaintiff’s sides go into a conference room and all sit on opposite sides of a conference table, with the mediator seated at the head of the table.
- The process of mediation is explained – About ten minutes are taken by the mediator to explain the mediation process. An attempt is also made to bring about a favorable settlement environment by speaking on each of the parties being in attendance in good faith to obtain a resolution. As an encouragement to settle, the mediator may also explain the benefits of reaching an agreement and the uncertainties involved with going to trial.
- The plaintiff’s counsel presents the case – The plaintiff’s attorney is invited by the mediator to submit a presentation of the strong points of the case. This process can last only five minutes, or it can take as long as two hours. While they may attend, the client does not participate in this process.
- Defendant’s counsel presents the case – Next, the counsel of the accused gets an opportunity to show the strong points of their situation and answer any disputes of the plaintiff. They generally also highlight the fact that each party is in attendance in good faith. This process can last anywhere from a few minutes to about one hour. While they may attend, the defendant does not participate in this process.
- Parties of the case separate – At this point, the mediator will request that each of the parties divide into different conference rooms. While this frequently happens before the first demand, it can also occur after.
- Opening demand is presented – the plaintiff’s counsel makes the initial opening demand (opening settlement offer).
- Mediation starts – The original claim is taken to the defense counsel by the mediator where the demands are discussed. Then a counter-offer is usually made. The counter-offer is then taken to the plaintiff by the mediator. This process continues, and in some situations only lasts about 30 minutes, whereas other conditions can take several days.
- At the conclusion of negotiations – At this point, an agreed number for a settlement is reached. Or the mediation will end with no settlement number being agreed upon.
- Documents for settlement are written – The mediator presents documents for both sides to sign when terms of an agreement have been reached. This process usually takes around 30 minutes.
- Claims are dropped, or settlement funds are distributed – The settlement documents usually specify a timeline for the transfer of settlement funds. Papers are also signed by the plaintiff that releases the defendant of any potential liability. The deadline will usually range from as little as 15 days or as much as 60 days.
This is just an idea of what can be expected during the mediation of a personal injury case, as the uniqueness of a situation can cause the mediation process to be significantly different.