The prospect of a personal injury dispute can be scary, conjuring images of a heated courtroom, being grilled by the defendant’s attorney on the stand, and sitting in limbo as you wait for the jury to deliver their verdict.
But there is an alternative — personal injury mediation.
In this article, we’ll look at how personal injury mediation works, why you should consider it, and how it can benefit your personal injury case.
Understanding Personal Injury Mediation: What Is It and How Does It Work?
Personal injury mediation occurs when the parties involved — the plaintiff (you), defendant(s), and legal counsel — meet outside a courtroom to discuss a possible resolution to your case.
The mediator is a neutral third party; there to facilitate discussion and control communication as negotiations progress.
Going to trial is time-consuming, with the personal injury court procedure taking many months or years, so mediation appeals to many because it offers a more timely — and cost-effective — way to settle the dispute.
Add to this the guarantee of confidentiality, control over the decisions you make, and options for more creative solutions not available inside a courtroom, and mediation proves a flexible and mutually beneficial arrangement for all.
Think of mediation as an alternative route to the justice you seek away from a judge and jury.
The Mediation Process Overview
So now we know what mediation is, how does it work?
First, it’s vital to explain that mediation is only effective if all parties are open to collaboration. It is a voluntary process, so it is a waste of time and money if one party is set on a specific outcome and unwilling to compromise, and will likely only result in more tension and frustration.
Assuming mediation is the right fit, the process itself is fairly straightforward. Sessions may be conducted face-to-face or via video link based on the parties’ preferences and involve the following:
- An initial meeting with the mediator to understand how personal injury mediation works and set expectations.
- An opportunity for both the plaintiff and defendant to communicate their concerns and other matters considered essential to either party.
- The mediator steering the parties towards a mutual agreement — it is not the mediator’s role to make decisions on behalf of either side.
- Exploring potential resolutions, focusing on reaching common ground.
- Optional private sessions with the defendant and plaintiff. Known as a caucus meeting, this is when more sensitive issues are discussed further and goals may be reassessed.
Ultimately, the mediation process:
- Aims to create a cooperative relationship between the parties.
- Seeks a fair outcome for both parties in a personal injury case.
- Is usually much faster than a courtroom trial, where evidence is presented before a judge and jury, making it a worthwhile option for those looking to reach a faster resolution or maintain privacy and confidentiality.
A personal injury lawyer can guide you through the process and represent your case interests. You can get an approximate idea of what your claim is worth through our personal injury calculator.
Differences between Mediation and Negotiation
Mediation involves a neutral person seeking common ground between the two parties. We advise mediation when negotiations do not yield the desired results. During mediation, the neutral party helps to facilitate the chances of an agreement between the plaintiff and the defendant.
Negotiation is a direct communication process where bargaining takes place before a lawsuit. This process continues even if unsuccessful the first time, as the defendant and plaintiff usually don’t want a lengthy case.
However, if negotiations do not reach a resolution, both parties can opt for a personal injury mediation session.
Benefits of Choosing Mediation for Personal Injury Lawsuits
Mediation may be preferable to a courtroom drama. It’s also cost-effective and strives towards a fair outcome for both parties.
Let’s go through the advantages of mediation as compared to traditional litigation.
Mediation Cuts Costs and Time
By opting for mediation, both parties save a significant amount of money by avoiding a trial in court. They bypass courtroom legal fees and the expenses that come with witnesses and court costs. Both parties also benefit from a process that seeks fair compensation without the overhead of extra high legal expenses.
Mediation allows both parties to schedule a session at a convenient time for them. This is more efficient and quicker than waiting for a court date and expedites the path to a fair resolution of the personal injury dispute. The use of a mediator is a big time saver.
Confidentiality and Open Dialogue Discussions
A mediation session is a private meeting between the parties and the neutral mediator. Sensitive information discussed in mediation is kept confidential by the mediator.
So, how does a personal injury mediation session facilitate privacy and open dialogue?
- The plaintiff and defendant can freely discuss concerns and seek a resolution in a safe space. The open discussion approach means that the parties can speak openly with no fear of their words going against either party as they could in a courtroom.
- The session is an open dialogue setting, taking a more problem-solving approach. Away from the traditional courtroom, the mediator encourages a better flow of brainstorming between the parties. This way, a more mutually beneficial and satisfying outcome to the dispute can be reached. An apology can be made, which is unlikely in a trial.
- The key to mediation success is its ability to encourage empathy, allowing both parties to be open about their feelings — something lacking in a courtroom. The aim is for an amicable resolution that respects both parties.
Consult a personal injury lawyer at Patino Law, specializing in mediation procedures. Our attorney will offer guidance throughout the process and advise you on how best to pursue your interests and the required resolution.
What Are the General Disadvantages of Mediation?
While mediation paves the way toward a win-win solution for both parties, it does not guarantee a settlement conclusion. Here are some disadvantages to be aware of.
Expenses Can Be High
Using a mediator can cost and leave you with high expenses. The mediator is paid a small percentage of the settlement reached. In addition, there is a chance that a resolution will not be reached, and you must still pay costs. This is one reason a negotiation should be considered first, as it’s free.
The At-Fault Party May Repeat the Offense
When a settlement is reached, the injured party goes away, happy with the outcome — also hoping that the defendant does not repeat the alleged wrongdoing. But if proceedings establish that the offense was intentional, the illegal conduct may be repeated.
Mediation Cannot Guarantee Resolving the Dispute
There is no guarantee of a mutually favorable outcome for the parties. If either party decides not to comply with the agreement terms reached, the mediator may not enforce those terms.
If mediation cannot reach an agreement, you’re left with pursuing the matter through the court.
Dealing with No Settlement at Mediation
It happens. Mediation sessions can fail to reach an agreed settlement. When this occurs, the case can proceed to litigation in court. If this occurs, Patino Law can help you progress to the court and represent you before a judge and jury.
Negotiation or Trial?
Your attorney may suggest alternative routes to a mediation settlement through negotiation or arbitration. Every case is unique, and it’s important to consult with legal counsel before a trial.
The exception is if the personal injury case involves a plaintiff with life-threatening injuries such as brain damage or paralysis. In this case, the next stage will be in the courtroom.
What Happens When A Case Fails To Settle?
If a case cannot reach an agreement during mediation, it will go to trial unless further negotiations are possible. Doctors and witnesses involved in the case will be subpoenaed and need to be ready to attend court. Any documents associated with the case must also be prepared for the trial.
Should A Last-Minute Settlement be Accepted Following Mediation?
It’s not uncommon for an offer to be reached shortly before a trial. A last-minute offer could come from a defendant wanting to avoid a trial, and the plaintiff’s lawyer will advise them whether to accept or reject the offer.
If this happens, your lawyer will advise you of your options. Accepting an offer to avoid a trial after the mediation failed is not mandatory, but insurance companies may try to push you to accept a quick settlement to avoid the courtroom.
If you accept an offer, you can no longer sue for damages, including any additional injuries, as acceptance waives your rights to further claims.
If you receive an offer, consider these points under the guidance of your personal injury lawyer.
- Will the settlement offer cover non-financial damages such as pain, suffering, and long-term compensation for a decreased quality of life?
- Have you sustained catastrophic injuries that require compensation for any future medical expenses?
As a rule, you won’t be advised to accept settlement offers, but all cases differ in terms of the severity of the claim. Don’t accept an offer without legal advice.
Reach out to a personal injury lawyer at Patino Law Firm to find out how mediation can help your case. We will advise you on how to approach mediation, the proceedings, and what to do after mediation concludes.
You don’t pay until we win.