A 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 probably outcome of mediations and what a person can expect.
Below are relevant members that are normally 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 that is paid to the mediator is typically a flat fee that is determined by how many hours are 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 mediation work, as their reputation is improved with each successful resolution.
- Counsel for Defendant – This is the lawyer or lawyers that represent the defendant. They generally have a thorough knowledge in the aspects of the case and will often lead in opening arguments that are in the best interests of the defendant. They also take part in the negotiation process for settlements the defendant may be entitled to.
- Insurance Adjuster or Carrier for Defendant – A representative (adjuster) for the defendant’s insurance 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 attend, but not always. They usually 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 normally well informed on all aspects of the case and they present the defense with a short opening presentation pertaining to 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 that are made for amounts that are demanded, as well as determinations to accept settlement amounts.
What to Expect in 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 sitting 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 on good faith to obtain a resolution. As encouragement to reach a settlement, the mediator may also explain the benefits of reaching a settlement and the uncertainties involved with going to trial.
- Case is presented by plaintiff’s counsel – The plaintiff’s attorney is invited by the mediator to present 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.
- Case is presented by defendant’s counsel – Next, the defendant’s counsel is given an opportunity to present the strong points of their case and answer any disputes of the plaintiff. They generally also highlight the fact that each party is in attendance on 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 be separated into different conference rooms. While this normally happens prior to the opening demand, it can also occur after.
- Opening demand is presented – The initial opening demand (opening settlement offer) is made by the plaintiff’s counsel.
- Mediation starts – The initial demand is taken to the defense counsel by the mediator where the demands are discussed and a counter-offer is usually made. The counter-offer is then taken to the plaintiff by the mediator. This process is continued and in some situations only lasts about 30 minutes, whereas other situations can take several days.
- 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 on.
- Documents for settlement are written – The mediator presents documents for both sides to sign when terms of a settlement have been reached. This process usually take around 30 minutes.
- Claims are dropped or settlement funds are distributed – The settlement documents normally specify a specific timeline for the funds of a settlement to be transferred. Documents are also signed by the plaintiff that releases the defendant of any potential liability. The timeline 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 case can cause the mediation process to be significantly different.