For someone facing mediation in a personal injury settlement discussion, the process can often feel overwhelming and unnecessary. They may be wondering if trying mediation is worth it, if the case will settle, and whether they will recover what they had hoped. Mediation can be a helpful tool when the parties would like to have control over the outcome of the case, but for someone who has little or no exposure, there is often a distrust of the process and a reluctance to participate fully. This article seeks to provide an overview of mediation in personal injury settlement and the pros and cons of using mediation to resolve a personal injury dispute. We will examine the usefulness of the process and consider the benefits that make it a valuable option to settle a personal injury case.
Personal Injury Law:
Personal injury is often governed by an area of law called torts. This is an area of civil law that allows a party to ask for damages for a wrong that was done to them. It includes things like assault, battery, false imprisonment, a host of negligence scenarios, and products liability. This is the area of law that a person injured in an accident or someone who used a defective product may use to bring a claim. A person may even sue for wrongful death actions in some cases. Personal injury law often makes the news because of big verdicts for patients who suffered damages as a result of medical malpractice or other negligence. The goal of personal injury is to award damages to people who have suffered an injury at the action of another.
Personal Injury Mediation:
Mediation is an alternative dispute resolution tool where the parties meet with a third-party neutral called a mediator to discuss the possible settlement ideas and attempt to reach an agreement. Mediation often comes after the parties have tried to reach a settlement agreement through negotiation, but have had little luck in finding common ground. The addition of a neutral will help drive the conversation and encourage the parties to focus on the issues and interests at play. Some important concepts to understand about mediation are:
- Confidential: Mediation is usually confidential unless the parties agree otherwise. This means that nothing shared during the mediation will be revealed to other people, including the court. Additionally, things said to the mediator in confidence are confidential unless the mediator has permission to share it. Because personal injury claims may often involve sensitive information, keeping the claim out of public record can be beneficial for these types of disputes.
- Neutral: Mediations are conducted by a neutral third party. This means that the mediator does not share their opinion on the case or choose a side. It also means that the mediator needs to have no personal connection to the outcome of the case, such as a deal with one party or a financial gain if it ends in a certain way. This allows the parties in a personal injury case to feel confident that they will not be influenced by the mediator in any way.
- Not Binding: Mediation is not typically binding on the parties. This means that if the parties find themselves without an agreement at the end of the mediation, they can move forward with litigation or further negotiation. Because personal injury cases often involve highly emotional topics, mediation may not end in an agreement. However, it does allow the parties to have a fuller understanding of the strengths of the case.
- Voluntary: For mediation to happen, both parties have to agree to participate in the mediation. For personal injury cases, this usually happens after the parties are in the dispute unless there is an agreement between the parties covering all disputes. This is an important aspect of mediation because it ensures that one party cannot force the other into mediation.
- Representation: Chances are, if a personal injury lawsuit is already pending, the parties will have representation, and these lawyers will likely participate actively in the mediation. This is not always the case, but even when represented, the parties may ask their representation to let them take control for a bit.
Steps in the Mediation Process:
Knowing what to expect when from mediation will help a party prepare for the mediation and feel more at ease when they start. Each mediation will look slightly different because a mediator will adjust the process to accommodate the parties’ needs and the mediator’s specific style. The parties will also have the ability to drive the process and ask for specific considerations. However, most mediations will have similar steps in the process, and personal injury cases typically follow this process as well. These steps include:
- Introductions: At the beginning of the mediation, the mediator and the parties will introduce themselves and the mediator will lay out the ground rules for mediation. This usually means that the parties will sign a confidentiality agreement and the mediator will remind the parties about all that this entails. They will also explain their role and confirm that there is nothing that will impede their ability to mediate the case neutrally. The mediator may also explain how the process will go so that the parties can know when things will be happening.
- Opening Statements: The first thing that will happen after the mediator finishes opening the mediation is the opening statements by the parties. This is where each side has a chance to present their case and outline why they believe the case showed be settled according to their case. Each side will have a chance to present evidence and make their case, starting with the plaintiff and then the defendant or defendants. This helps the mediator and the other party see the strengths and weaknesses of the case and a fuller picture of what could happen at trial if the case does not settle. The goal of the plaintiff’s statement is to show everyone why they should receive the value they are asking for. The defense will look to prove why they should not pay all the money asked for.
- Caucuses: After opening statements, the bargaining process begins. The mediator will usually separate the parties and ask them about the case. This allows the parties to speak more freely with the mediator, who cannot tell the other party what was said unless given permission. The mediator will also usually have a discussion with each party about the strengths and weaknesses of their case. During this time, parties may suggest offers and have the mediator relay these to the other party.
- Bargaining: As the parties continue in mediation, they will move away from the facts of the case and begin focusing on the offers and counteroffers that are moving between the parties. This is where they will attempt to hammer out an agreement and come up with a solution to the case.
- Ending: The ending of the mediation will either be an agreement signed by the parties or an agreement that the case will not be settled in this mediation and the parties need to move forward with the trial.
Does the Process Work?
Mediation does not mean that a case will settle, and treating the process as such will only result in disappointment. Mediation, especially in personal injury, does not always end in a settlement agreement. This can be for a variety of reasons, including emotions, misunderstanding, or mismanaged expectations. A party may react to the process emotionally, especially the plaintiff in a personal injury case, and will often feel as though the other party is not respecting their position. Personal injury involves a lot of harm and emotion, so it is understandable that a party would feel emotional as they are attempting to settle the case. Additionally, parties will occasionally misunderstand each other’s position and will feel that they have a better or worse case than they do. When this happens, it is unlikely that the parties will settle, especially if one of the parties feels that they need to reevaluate their position. Finally, a party can come to a mediation with expectations that do not meet the parameters of the process. A party may come thinking that they will recover all that they are asking for in their complaint or that they will not have to pay anything. This will often result in mediation without an agreement because the parties will not be able to meet those expectations.
When mediation does not end in an agreement, it is important to focus on the positives. First, through the process of mediation, the parties could gain a better understanding of the case and how their case lines up against the opposing viewpoint. This can help with preparation for litigation and other negotiation down the road. Additionally, it can help the parties start to determine how they might be able to settle the case moving forward. While they may not come up with a solution in mediation, they will have a better understanding of what the other needs and determine how to move forward. Finally, mediation allows the parties to present their case. If nothing else, it identifies weaknesses in presentation and helps the parties to see where they need to strengthen their evidence. It provides an opportunity to moot the case before trial and to watch the opposing party react. Therefore, even when mediation does not result in a settlement after the fact, it gives the parties insight that will help prepare them to move forward. This fact seems to indicate the mediation is likely worth it.