In this blog entry, I’ll share some thoughts about mediating your personal injury case.
Mediation is a tool used by the courts, as well as people who want to avoid going to court, to resolve legal claims without a trial.
Mediation is a specific example of a process known as alternative dispute resolution. In other words, an alternative to a trial.
In Vermont, every personal injury lawsuit involving a car accident will have a required mediation session as part of the court process.
In New York State, courts encourage mediation of car accident cases, but it’s not usually required.
Generally, the courts leave it up to the lawyers to select someone, usually a professional mediator, to work with and figure out what the process will look like. The parties will be expected to equally share the fee for the mediator.
What to expect at mediation
Mediation can mean a lot of different things, from a single in-person meeting, to a series of video or phone conferences over the course of weeks or months, and sometimes both.
Many people think that they have to settle their case at mediation, but that’s not true.
A case is only settled if both parties agree to the terms. That is because a settlement is a contract, and at its most basic, a contract that involves two basic promises: you agree not to sue or to drop your lawsuit, and the defense agrees to pay you a certain amount of money.
It can get a little bit more complicated than that, particularly when you start to talk about dealing with the timing of payment, or how to deal with expenses related to the litigation. But at its heart, a mediated settlement is an agreement to end a claim or lawsuit in exchange for money.
Is mediation good or bad?
You may be wondering, is mediation a good thing or a bad thing for injured people?
The answer is of course, it depends. It depends on you, your preferences and the kind of case you have.
In some circumstances, lawyers try to mediate cases before filing a lawsuit that we believe may be difficult to win at all, or to see if we can get some indication of the defense’s perspective on the case.
Mostly though, insurance companies and their lawyers don’t want to settle cases too quickly. They usually want to do some investigation to try to limit their losses. They’ll wait until close to trial and try to use mediation as a tool to wear down injured people, and hope they will settle their cases for less than they’re worth.
Acknowledging mediator bias
Mediators themselves have their own agenda too: they like to see cases settled. So they push both sides as hard as they can, even if it means one side shifts their position more so than the other side.
And mediators are proud of their track record of making settlements happen, even if it’s not a great outcome for the injured person.
When does mediation often happen?
In most car accident cases, mediation takes place somewhere between a year and a year and a half after the case is filed. It’s usuallyone of the very last things to happen before the court considers the case “trial-ready.”
By this point, many injured people are weary of the process and they’re ready to be done. Now you should be aware that insurance companies and defense lawyers know this about mediation and they try to use it to their advantage.
Summary: Mediating your personal injury case
In summary, mediation is a process that happens outside the courtroom. While a court may order you to participate, you don’t have to settle your case in mediation. You will have to pay for it, though.
Mediation could be helpful in the right case, but don’t get your hopes up unrealistically.
Most of the time, the insurance company isn’t looking to give you a fair offer and you should be prepared for that. In some circumstances, like before filing a lawsuit at all, mediation can be very effective.