Those who are injured in auto accidents and are facing mediation may question what happens at mediation for auto accidents. Auto accidents are difficult circumstances, and dealing with insurance companies to try and recover from injuries can add to the difficulty. Negotiations with insurance companies can often come up short of an agreement because insurance providers are trying to preserve their business and pay only what they believe is due. However, mediation can often help the two sides, even the most stubborn of insurance providers, to come to a resolution that provides helpful compensation to the victim. This article seeks to provide an overview of the mediation process in auto accident cases, beginning with a brief overview of the mediation process and any particular changes that are present in the auto accident cases. Next, it will look at the benefits and drawbacks of using mediation to resolve an auto accident case. Finally, it will end with a discussion of what someone can do to prepare for a mediation.
Mediation Defined:
Mediation is an alternative dispute resolution process where the parties to a dispute meet with a neutral third party known as the mediator. The process functions similarly to negotiation, except the mediator helps guide the conversation and stands between the parties to help them come together. Mediation is usually voluntary, meaning that both parties have to agree to participate in the process, and it is confidential. Mediation is in control of the parties, meaning the parties have complete control over the outcome of the case. They can choose to end mediation at any point and proceed with the case in other forums, or they can agree on a way to settle the case and leave with a resolution. Regardless of the outcome, mediation provides a forum for the parties to come together, focused solely on the process of resolution, to gain a better understanding of the case and find a way to work together.
The mediator has the role of helping the parties approach a resolution by pointing out common ground and keeping the tone in a cooperative rather than adversarial space. Most mediators will keep their personal or professional opinions of the case, but occasionally, they will act as an advisor if one of the parties is being unreasonable. This is usually accomplished by pointing out weaknesses in that party’s position and helping them to see what would happen without an agreement. This helps the party understand what their position is and to have some level of control over the outcome. Mediators play a vital role in helping the parties find where they can come together.
Mediation Steps in Auto Accident Cases:
Mediation commonly has several steps that the parties will move through to attempt to find a resolution. These steps may have some variation in how they are carried out depending on what the parties need and the mediator’s style, but these steps will often be present. This is also often the first time the victim will actively participate in the negotiation, and it will give the parties a chance to speak with each other instead of their lawyers, so the mediator will often begin with an opportunity for the parties to talk to each other about the case.
- Introductions: The mediation will usually start with all of the parties in the same room. The mediator will introduce themselves and the participating parties and explain the mediation process. Next, they will establish ground rules for the mediation, such as confidentiality and cooperation. This step will usually be fairly short but will help the parties feel prepared to move forward.
- Statements: After the mediator has begun the mediation, the parties will give their statements of the case. Each side will have an opportunity to present their version of the story with facts and evidence. During this section, the mediator will ensure that the nonspeaking party is listening to the statement of the case and does not interrupt. This will happen when the parties are in the same room to ensure that everyone has a similar understanding of the case. The parties will also often present their demands for settlements and what they would like to see from the mediation.
- Caucus: After the statements, the mediator will often split the parties into separate spaces called caucuses and gather information from each party that they would like to say in confidence rather than in front of the other party. This may be information about the low end of their settlement or information that hurts or harms their case. This allows the mediator to have a broader understanding of the case. The mediator will also stress that they cannot share any information gained in this discussion with the other party without permission, which gives the parties the confidence to share more about the case.
- Negotiation: After the parties have spoken with the mediator a few times, they may begin to give offers to the mediator to start the negotiation process of the mediation. The mediator may run the offers back and forth between the parties, or they may call them back together to discuss settlement, whichever option will be the best for the situation and the parties. This step and the caucus step may cycle back and forth for some time as the parties speak with the mediator about their case.
- Agreement: The mediation will end in an agreement of some kind. Either the parties will agree on a resolution and put that in writing, or they will agree that they will not resolve the dispute during the mediation, and they need to move forward with other options. Another option is that the parties agree on aspects of the case, but would like to go to trial on other aspects. In this situation, they will sign a partial settlement agreement and limit the issues at trial. Once the parties have reached an agreement, the mediation will conclude and the case will move forward with the resolution or to other resolution mechanisms.
These steps provide a basic outline for what a mediation may look like; however, the mediator may move through the steps in a different order or move back and forth through the steps as well. Mediation can feel intimidating, but it can be helpful in stressful and difficult situations like auto accidents to get the parties closer to settling if they are not able to settle.
The Pros and Cons for Auto Accident Mediation
If you are considering using mediation for your auto accident case, it is important to understand the benefits and the drawbacks that mediation will bring. Some of the pros of using mediation include:
- Control: In mediation, you can control the outcome of the claim. You can decide what the resolution will be and that you will get some kind of resolution when you leave. If a claim goes to litigation, the outcome will be in the hands of the judge or jury.
- Humanizing: When insurance companies are working on claims, it can be common for them to treat the claim as a number. Mediation allows the claimant to put a face behind the claim for the insurance company. It humanizes the claim and allows them to see the real impact the accident had on a person’s life.
- Confidential: The claims will remain confidential, which can be beneficial for both parties, as the insurance companies do not have to disclose what they paid, and the claimant does not have to have the details of their injuries put on display.
Some of the drawbacks include:
- Lower Recovery: When the parties are working in mediation, it is unlikely that the claimant will recover the full amount they are asking for in the suit. They will likely recover a portion of the claim rather than the full amount because they will need to compromise to achieve a settlement.
- No Blame: Unlike a trial, there will be no determination of fault in the dispute, which can leave the claimant feeling as though they were robbed of justice in some way.
There are other advantages and disadvantages of mediation in accident claims, but these are some of the most important considerations.
Preparing for Mediation:
The final piece of consideration when looking at mediation for auto accidents is to consider what needs to be done to prepare. While there are other tips to prepare for mediation, these are some that will help determine your case and how to best present your position.
- Find a good mediator: Finding a good mediator can help the case move closer to a resolution and ensure that the parties consider settlement options from all sides.
- Gather evidence: One of the keys to achieving a good result in mediation is to gather the evidence you will need to prove your case. This can be medical opinions, accident reconstructions or animation, and pictures of the cars. This evidence will be helpful to demonstrate why you are asking for the relief you are.
- Be open: Prepare yourself to be open with the mediator with what you need and why you need what you need. It can be difficult to decide what to share at the moment, so go in with a prepared list of what the mediator may need to know to help with your case.
- Know the opposition: Having a thorough understanding of the case from the insurer’s point of view will help you be prepared for potential arguments they may make and help you know what to offer to put yourself in a better position. You should understand the other side as well as your own.
Mediation can be a helpful tool to settle a claim in an auto accident case. Finding a resolution without trial may bring many benefits, but the parties must be prepared to ensure that they can settle the case effectively and fairly. When the stress of an auto accident affects you, mediation may be the breath of fresh air your case needs to resolve.
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