What Happens at Mediation in a Personal Injury Case?
After the lawsuit is filed, after you’ve had your deposition taken, and after you are examined by the defense doctor, the next time in a personal injury case that you, as the client, have to be involved, is the Mediation.
What is Mediation?
The American Bar Association defines Mediation as “a private process where a neutral third person called a mediator helps the parties discuss and try to resolve the dispute.” Essentially, it’s a fancy word for a settlement conference.
After your attorney has properly worked up your case, and the defense has properly worked up their case, both sides will usually attempt to settle the case prior to trial. The most often used tool to settle a case, is Mediation.
Who will be the Mediator?
Since Mediation is voluntary, your attorney and the defense attorney will agree on a Mediator to use. Mediators are often retired judges or attorneys who have a private Mediation practice. Private attorney Mediators can either be on their own, or part of a large dispute resolution group, such as Judicate West, Signature Resolution, or ADR Services (all located in Southern California).
The Mediator is generally known by both attorneys. However, it is usually more important to choose a Mediator that the defense attorney and/or insurance adjuster trust and will listen to during negotiations so long as the Mediator will be fair to both sides.
As a Plaintiff, you want a Mediator that will not be afraid to tell the defense the positive points about your case and you want that Mediator to have enough credibility with the defense, that they will trust and listen to that Mediator when he or she tells them they need to pay significant money to settle your case. Having a Mediator that is completely in your corner, but is not trusted by the defense, will not be helpful.
What Do YOU Do at a Personal Injury Mediation?
Generally, you and your attorney will be in a separate room from the defense. The defense room should include the defense attorney and the insurance adjuster. Usually the insurance adjuster is the most important person in the room, as the adjuster truly controls the money and how much, if anything, will be offered to you in settlement. The Mediator will move back and forth between the rooms –discussing the case with you and your attorney, and then discussing the case with the insurance adjuster and defense attorney.
Often times, the Mediator will even talk to your attorney privately outside of your presence. They do this so they can be completely honest about the pros and cons of your case, especially if the defense is conveying negative information about you.
During the current pandemic, and probably well in to the future, these Mediations can be held remotely through Zoom or other software. Although the parties will not be in one location, the process will not change. The Mediator will speak privately in one virtual room with one side, and then speak privately in a virtual room with the other side.
Your role during the Mediation will generally be limited. It is not a deposition, and for the most part, you will not have significant interaction with the other side. Initially, the Mediator will want to meet you and spend a few minutes to get to know you so he or she can gauge how you will be as a witness. Additionally, the more experienced insurance adjusters will also want to meet you briefly for the same purpose. Although the defense counsel has usually taken your deposition by this time and has had an opportunity to evaluate you, the insurance adjuster has not. Your attorney will prepare you for both interactions.
Sometimes, the Mediator will feel the need to get all parties together in one room for a joint session. If that happens, your attorney will prepare you prior to the session so you know what to expect.
What About Settlements?
The goal of Mediation is to settle the case. If you are able to do that, that’s great. But many times, to get full value for your case, you will have to leave Mediation WITHOUT the case settled. If that happens, the Mediator often continues to assist both sides in negotiations telephonically. Sometimes, a second or even third session of Mediation will be scheduled.
It is becoming more prevalent that more than one session of Mediation is needed to resolve a personal injury case. So if you do leave Mediation with the case not settled, do not lose hope, it may still settle.