Mediation in Personal Injury

Personal injury mediation is a thriving practice in many parts of the country.  Mediation takes personal injury cases out of the court systems and allows the parties to come together to discuss a possible way forward.  Mediation is popular in personal injury cases because it allows the parties to have control over the outcome of the case and keep more of the settlement.  The process also allows the parties to access a third-party neutral to help work through the issues that the parties are facing to reach an agreement.  This process can be either voluntarily agreed to by both parties, or a court may order mediation to attempt to resolve the issue.  This article will outline the mediation process when it is used in personal injury cases and then discuss some tips for successfully preparing for a personal injury mediation.

Personal Injury Law

Personal injury is usually governed by an area of law called torts.  This is an area of civil law that contains laws to bring a civil action for damages for a wrong that was done to a person.  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.  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 outside of mediation. 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: This has been mentioned a few times previously, but mediations are conducted by a neutral party.  This means that the party does not share their opinion on the case or choose aside.  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 be heard.
  • Not Binding: Mediation is not binding on the parties unless there is an agreement reached.  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 a 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 preparing for 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 that the mediator’s own specific style.  The parties will also have the ability to drive the process and ask for specific considerations within the process. However, most mediations will have similar steps in the process, and personal injury cases typically follow this process as well.  These steps include:

  1. 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 the 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.
  2. 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 see 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.
  3. 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.
  4. 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 the parties will attempt to hammer out an agreement and come up with a solution to the case.
  5. 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.

Preparing for Mediation

When faced with a personal injury mediation, it is vital to be prepared for the mediation to ensure that one receives the desired result.  While each case will look different depending on the parties, some basic tips can be followed to approach mediation with confidence.  These tips are:

  • Know Your Case: Knowing every detail and fact about the case will help a party be prepared for anything that comes their way.  It also helps a party understand their strengths and weakness and can help them to either make a fair agreement based on their case, or it may push them toward trial if the other party is not cooperating.
  • Agendas: Remember that both sides of the mediation will walk into mediation with an agenda that they would like to accomplish.  For Plaintiffs, this may be to receive the money they are asking for and convince the defendant that it should be paid.  For the defendant, their agenda is often to try and get the plaintiff to move away from high amounts.  Sometimes this can come across as aggressive and brazen.
  • Sharing Information: Be prepared with lists of things that you would like or need to share with the mediator or the other party and stick to that list, especially in what is relayed to the other party.  However, when speaking with the mediator, it is important to be honest so that the mediator can effectively understand your case and help with solutions.
  • Mediators: Choosing a mediator, if the option is available, can be a tedious process because the parties will want to pick a stellar mediator within their price range.  Knowing how a mediator works will be beneficial to a case because it will help you give the mediator the right information and will ensure that the mediator understands and wants to help the parties settle.

Conclusion

Personal injury mediation is very similar to other types of mediation.  However, there is less room for creativity as the case is often about a specific injury and how to make that person whole.  Because of this, the parties may participate in distributive bargaining, viewing the settlement as only about the amount of money paid or received.  However, personal injury cases have unique opportunities for certain types of relief that allow the parties to be creative.  Mediation presents a place for the parties to see the other side’s case and evaluate the strength of their own.  It also allows the parties to actively participate in the outcome of the case.  Mediation can be a fantastic way to resolve personal injury cases and a wonderful way to oversee the outcome.

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