At some point in pursuing your personal injury claim, mediation will be suggested as a mechanism for resolving the dispute. You may question, however, whether it is appropriate for your situation.
In this article, we’ll discuss what mediation is, along with its benefits and drawbacks, so you can make an informed choice.
What Is Mediation?
Mediation is a form of alternative dispute resolution that allows the parties in a dispute to negotiate a settlement as facilitated by an impartial and independent mediator. It is designed to provide a method of settling a disputed claim without going to trial.
Mediation can be voluntary, but judges can also require the parties to mediate before a trial. The parties remain in control, and the dispute will only be settled if both sides agree.
What Is the Format of Mediation?
The parties will select a neutral third-party mediator through mutual agreement. They will also agree on the date, time, and location of the mediation. The parties will usually split the costs of mediation; however, this can be negotiated and included in any settlement agreement.
Generally, mediation is an informal process. Before the mediation begins, the parties usually exchange information about their positions and what outcome they’re seeking. Although the parties can decide whether they would like to remain separate throughout the session, typically there will be a combination of joint meetings with the parties and their lawyers as well as private sessions between the mediator and each party. The mediator will use these meetings to explore the possible ways of resolving the dispute.
Everyone will sign a confidentiality agreement so that everything discussed is confidential and cannot be referred to or relied upon by a party in court or arbitration later. This allows the parties the freedom to discuss the dispute fully without fear of saying or admitting something that will come back to haunt them later.
Although the structure varies, typically the parties to a personal injury case will be allowed to speak to the mediator in the presence of the other party, speak directly to the other party with the mediator present, and speak alone to the mediator. The mediator will focus both parties on the issues, minimize the negative feelings, and try to find common ground. Mediators cannot give the parties legal advice, which is why it is beneficial to attend a mediation with your lawyer.
If the parties come to an agreement, the parties will sign a settlement agreement. If the parties cannot agree on a resolution, the matter will proceed to a more costly, time-consuming, and stressful resolution in a trial or arbitration.
What Are the Benefits of Mediating Your Personal Injury Claim?
There are many benefits to this form of alternative dispute resolution, which is why it is used so often in personal injury cases when the parties have reached an impasse in their private negotiations.
First and foremost, mediation can be a great tool for resolving claims more quickly and without spending the time, money, and emotional energy of pursuing a trial.
Not only does mediation cost far less than a trial, but it also offers a greater range of ways to resolve a dispute. A court can only determine the compensation that may be owed to the injured party. But mediation gives the parties the control and freedom to consider other remedies.
For example, an injured party may walk away from the courtroom having secured a victory but still feel resentful of the process and the emotional and financial toll it has taken to get there. Litigation rarely provides a salve for emotional wounds.
However, in mediation, the injured party may secure an apology or greater understanding of what they went through and why, which may help with their emotional healing. Furthermore, they might also be able to secure reassurances that the at-fault party will take steps to ensure that someone else doesn’t have to go through the same thing. This often allows the parties to find a better, more satisfying outcome, although by the nature of settlement and compromise, each party must accept that they will not achieve their ideal outcome.
Mediation is also a private affair, unlike a public trial. There are no records or transcripts that can be relied upon later.
Narrowed Issues and Greater Insight
Even if you can’t settle your case, you’ll likely be able to narrow the scope of issues. You’ll also get the opportunity to meet the opposing party and assess them. And finally, you’ll gain insight as to how the lawyers operate and how they view the dispute.
What Are the Drawbacks of Mediating Your Personal Injury Claim?
There are few downsides, aside from the time and costs. Although the costs will be significantly lower than going to court, mediation would be a costly added expense if it fails.
Remember, just as you can size up the other party during mediation, they’ll be studying you as well. Insurance companies will assess your credibility and whether you would make a good witness at trial. This could affect their overall evaluation of the case and the settlement offer they make. Be prepared, be vigilant, and try not to become emotional.
Should I Mediate My Claim?
This is a decision you should make with an experienced personal injury lawyer. A personal injury lawyer with trial experience will often be able to recover more compensation for you than if you negotiate with the insurance company directly.