What is mediation?
Mediation is a growing aspect within the practice of personal injury law. Lots of people have heard of it, but what is it?
Generally speaking, mediation is a process where a neutral 3rd party tries to assist you and the person you are suing to reach an agreement on how to settle the matter. If settlement is reached at mediation, it will encompass all aspects of the case, including your past and future medical expenses, your property damage (if any), and damages for your diminished quality of life. As with any settlement reached outside of the courtroom, any payment for your injuries by the at-fault person will not come with any admission of fault.
A mediator once explained one goal of mediation as having everyone being “satisfied” at the end of the mediation. While a plaintiff may leave the mediation accepting an amount of money lower than what they may have received at trial, they also will leave with more than they would receive if the jury put very little value on their case. And the defendant will leave paying more than they want, but less than a jury could award if the jury were to put a high value on the case.
In the mediation process, the mediator may start off talking to both you and the at-fault person at the same time, or perhaps separately. Either way, the mediator will explain their background, their theories about mediation, and how the go about conducting a mediation. After that opening is completed, the parties will separate to different rooms, and the mediator will go back and forth between the rooms listening to the parties, and talking to them about the case. Speaking very generally, in these meetings (called “caucuses”) with the parties, the mediator will tell you some of the strengths of the other party’s case, and explain some of the weaknesses of your case to you and your attorney. But when the mediator is in the other room, the mediator will explain the strengths of your case, and the weaknesses of the other party’s case.
The point of this part of the process is to get the parties to understand and recognize there is some uncertainty to everything, no matter how strong you may think your case is.
Mediation, if successful, also eliminates the uncertainty of a trial. Even if you have a great case when it comes to the issue of fault, predicting what a jury will do with the issue of damages is, at best, an inexact science. While you may believe your case is worth one thing, the jury may believe it is worth something far less.
There are several benefits to the mediation process. In our experience with mediation, it seems that one big benefit to mediation for our clients is the amount of participation mediation allows the client to have in the outcome of their own case. In mediation, you will get the chance to explain your injuries, and your emotion about those injuries to the mediator. While you would get that chance in trial, where you could explain all of that to the jury, mediation is free of the formalities and intimidation factors that are found in a courtroom. Also, mediation gives you a say in the settlement of your case. If your case goes to trial, you have no say in the settlement once the case goes to the jury. Mediation can offer the injured person a sense of empowerment she is probably not going to feel in a trial.