Mediation is a tool that is often used in personal injury cases to try and settle the case before trial and is one of the most popular ways to resolve a personal injury case.
Mediation is an informal process in which a neutral third party, called a mediator, helps the parties to a personal injury case reach an agreement. In this respect, the mediator serves both as an evaluator and a facilitator.
The mediator is usually a retired judge or attorney who has knowledge in regards to the type of cases being negotiated. The mediator, for a fee, agrees to meet with the parties, analyze the case and attempt to bring them together to reach a resolution.
During mediation, the mediator has the following responsibilities:
● To identify the most important issues
● Clarify misunderstanding between the parties
● Present and explore solutions
● Negotiate a settlement that both parties can agree to
The concept of mediation is that rather than take the case to trial and have it decided by a jury, the parties agree to attempt to settle the case themselves. The main reasons that the parties to a personal injury case often choose mediation are as follows:
● Mediation is faster: Mediation can take place at any time, from just before a lawsuit starts until just before for the trial. You don’t have to wait for a judge or jury to make a decision.
● Mediation is cheaper: Going to trial is much more expensive than mediation.
● Control over the outcome: The outcome is determined by the parties involved––they decide what happens instead of a judge or jury
● Certainty: The parties receive certainty as to the outcome because only they determine what the outcome will be. They avoid having their fate in someone else’s hands
● Less Stress: There is reduced stress involved in resolving a personal injury case for all of the reasons above.
Furthermore, a unique benefit of mediation is that the parties can be creative as to the terms of the settlement. This means that settlement terms may include compensation that the law does not provide for.
How Does Mediation Work?
Typically, the mediation process only lasts a day and will start with a joint session in which the mediator explains how the process will work and allows the parties, through their attorneys, to present their cases.
After this, the parties will normally be separated into different rooms and the mediator will go back and forth between the two rooms discussing the strengths and weakness of each case and attempting to get them closer to a resolution.
A resolution will involves compromises being made on both sides. Both the plaintiff and defendant will be asked to make some concessions to get the case settled. If the mediation is successful, the case will end there and the parties will have resolved their case without having to go to court.
Any resolution made by the parties will be voluntary and only those issues agreed upon by both parties will be included in the settlement. It is also important to understand that no settlement will be reached unless both parties agree to it. If no settlement is reached, then the case must go to court.