Mediation In Injury Cases: It Has Its Place

Lawsuits get resolved in a number of ways, one of which is mediation.  While many Idaho injury claims can be fairly settled without a lawsuit being brought, sometimes a case needs to be filed. After filing a lawsuit the parties engage in litigation.  The litigation process leads to the exchange of information.  Once that information is exchanged,  there is often a chance to have another serious settlement negotiation to resolve the case without an actual trial.  Frequently, that negotiation gets done through a mediation.   Mediation in injury cases is a type of structured negotiation process.  It has been particularly popular for the past three decades.

Who Is The Mediator?

In a mediation, an impartial third party is hired to help the sides come to an agreement.  Retired judges, senior lawyers and others with proper training serve as mediators. Mediators have generally been trained in dispute resolution methods and have substantial legal experience.  Frequently, he or she has a special certification from the courts.  Organizations like the National Association of Distinguished Neutrals help mediators develop the skills needed to facilitate the process.  The Northwest Institute for Dispute Resolution focuses on training mediators its base at the University of Idaho.

In short, mediation is a way to try and resolve your lawsuit at a conference table rather than in a court room.

What You Can Expect At Mediation In Injury Cases

Mediation is usually conducted through an in-person discussion with all parties.  This includes you, the insurance company and/or the defendant, as well as the lawyers for all parties.  Traditionally they have been held at one of the lawyer’s or the mediator’s offices.  These days instead of everyone getting together in one place, they can be on an online platform such as Zoom.   Unlike a judge, a mediator must be paid.  Usually, you and the defendant will split this cost evenly. Mediation can be chosen or ordered by the court at any time during your case.  It happens most often and is more likely after discovery has been conducted.   There are times when even prior to filing suit a mediation is scheduled. The benefit of pre-suit mediation is that it can save both time and money.  But the reality is that there will be unknowns because the discovery process has not yet occurred.

The Mediation Conference

Prior to the mediation, the lawyers will share information about the case and their views with the mediator.   At a mediation conference, both sides sit down and discuss their cases with the mediator informally.  Some mediators like to sit with everyone in the same room initially and then split them apart.  Mostly these days though, the mediators prefer the parties stay in separate rooms for the whole process.  There is no jury.

The mediator will then discuss each party’s claims and arguments with the other side.    In these conferences, the mediator might ask questions and raise issues to help the parties understand each others views.  The goal is to find a compromise that all parties can agree to.  Mediators use various techniques to help the parties have a more complete conversation about their views of the dispute.  The mediators aim is to get the parties to reach an agreement  on a settlement amount or other disputed matter.

The Mediator’s Input

Because the mediator is experienced in the law affecting your case, he will take into account your legal rights, the extent of your injuries and the prospects of your case in a trial.    It is really a chance for a neutral, unbiased professional to help make sure everyone understands the variety of risks that exist if the case goes forward to trial.  A good lawyer will have prepared you for most of the things a mediator might say about your case.  If your case is prepared and you have a good lawyer there shouldn’t be big surprises during a day of mediation.

Meditations can be long processes.  You will discuss the wide variety of facts in a case, the legal issues, the risks.  Often there are personal issues and context that become part of the discussion.   Over the course of the process, the mediator comes to know the parties, their motivations, their needs, the dispute and the parties’ positions.

What a Mediator Can’t Do

It is important to understand a mediator CANNOT force you to resolve your case.   But, a good mediator wants to make sure that the parties who do not resolve a case at a mediation understand the risks and costs they face to take the case through trial.

Mediation Can Last Beyond A Day

Sometimes a mediation is not successful on the day set aside for the process.  Thus, after the initial mediation conference, you may have a follow-up conference. Or the lawyers and the mediator may discuss the matter by telephone. It is important to realize that coming to an agreement in this way can be slow. If you reach an agreement at mediation, you and the defendant will sign papers and take other steps to formalize it. If you do not come to an agreement, you are free to try again or continue toward trial.   The mediator’s only real goal is to get the parties to come to an agreement that will end the pending lawsuit.

Something to Watch Out For

In mediation, you are in a way previewing your case for the other side, just as they are previewing theirs for you. That means it is important to be careful about what you say.  You always want to present yourself in a professional manner, just as you would if you were going to trial.  A good rule of thumb is to behave as if the room is full of a diverse group of people from your area, some of whom may not be sympathetic to you.   A good lawyer prepares you for your mediation, just as she would for trial and depositions.

Mediation is not needed in every case.  And, it is sometimes overused. But it can get a case resolved. And, many insurance companies have come to like mediation.  This is because it gets all the parties, all the lawyers and the insurance carrier focused on that case for that day.