Mediating Personal Injury Cases

Most personal injury claims settle before trial, but the process of settling is rarely straightforward. To facilitate settlements, attorneys routinely use a form of alternative dispute resolution known as “mediation.”

What is Mediation?

Mediation is a forum where an impartial person—i.e., the mediator—facilitates communication between the parties to promote reconciliation, settlement, or understanding. Most of the time, the mediator is a licensed attorney familiar with the dispute’s subject matter. Unlike a judge or a jury, the mediator does not render a decision; instead, the mediator listens to the issues and tries to help the parties reach an agreement voluntarily. 

Most mediations start with a joint session where the mediator gathers all parties in one room, introduces everyone, and explains the rules and procedures. Each party’s attorney may decide to give a brief opening statement outlining the issues and their respective cases’ strengths. After the joint session, the mediator leads the parties into separate rooms. The mediator then goes back-and-forth between the parties’ rooms, trying to learn more about the case and conveying settlement proposals from one party to the other.

Pre-2020, parties almost always mediated in the mediator’s office. In the post-COVID world, most mediators are conducting mediations virtually using Zoom and other video conferencing software. Nevertheless, the process remains similar: the mediator begins with a virtual joint session, assigns the parties to separate break-out rooms, and attempts to move the parties closer towards a settlement.

Why Mediate?

Most, if not all, judges require parties to mediate a case before conducting a contested hearing. Even when mediation is not mandatory, most parties agree to mediate their case before trial. 

There are several advantages to mediating a case. First, since lawyers generally have many open cases at a time, mediation gives the parties a chance to concentrate solely on identifying and resolving the issues in that case. Second, the participants’ communications at mediation are confidential (i.e., they are not admissible in court), which allows the parties to be open and honest as they negotiate. Third, mediation gives the parties some input in the case’s outcome before handing the final decision to a judge or jury.

Do I Have to Settle at Mediation?

If the parties agree to settle at mediation, the mediator will draft a mediated settlement agreement and ask the parties and their attorneys to sign it. Once signed, the mediated settlement agreement is as enforceable as any other written contract. While mediators may suggest—and even strongly encourage—the parties to settle, the mediator cannot require the parties to settle. Likewise, while judges have the authority to compel mediation, they cannot force the parties to mediate in good faith or to settle their disputes. 

What if My Case Does Not Settle at Mediation?

The mediator spends the majority of time back-and-forth between the parties’ rooms trying to facilitate an agreement. In theory, each of the mediator’s moves should nudge the parties closer towards resolution. However, not all cases settle at mediation. When the parties fail to settle at mediation, they are in the same position they would have been had they not participated. Sometimes, the mediator might offer a final “take it or leave it” proposal designed to break a stalemate before the parties begin preparing for trial. Regardless, the parties can continue negotiating and may settle the case at any time, even during trial. 

Call an Experienced Accident Attorney Immediately After a Car Crash

Almost all lawsuits—including car crash cases—go through mediation. To be successful, you need an injury lawyer with experience handling, mediating, and settling insurance claims. If someone else’s negligence injures you or a loved one, you have enough things to worry about. Do not let dealing with the at-fault driver’s insurance company be one of them. We deal with the insurance company so you can focus on getting your life back to normal. You have one chance to do this; make the right choice by choosing the right attorney. Call us at (956) 291-7870 or email us at contact@rdjlawyer.com for a free consultation and case evaluation.