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How Does Mediation Work In Personal Injury Suits



What Is Mediation

When personal injury cases do not settle through negotiations between counsel, mediation represents a useful tool for further exploring settlement short of resorting to the risks and expenses of full-blown litigation. Mediation is a dress rehearsal for trial. During the process, attorneys and litigants meet in an office of either counsel or the mediator and present their best cases, arguments, documents, experts, and evidence to persuade a settlement. If the case settles, the parties draft a written agreement that they execute, which outlines the terms of the personal injury settlement. A final proposed consent order is signed and tendered to the court for its approval of the settlement. If the case does not settle through mediation, litigation resumes.

When Does Mediation Occur

Mediation can occur at any time after a claim is raised (even before formal suit is filed and served) and prior to the trial date. However, usually it happens after the plaintiff files suit and both sides have had an opportunity to research, investigate, and at least partially prepare their cases. If mediation occurs too early in a case, the parties are likely unprepared, especially on the defense side, where the activities are largely responsive and counsel has not had the benefit of working on the case as the plaintiff's counsel has. The process may suffer from more opinion and emotions and less evaluation and analysis grounded in the realities of the strengths and weaknesses of the case. If mediation occurs too late in the case, on the eve of trial, so many attorney fees may have mounted that the economics of settlement figures may not work. Parties and their counsel could be fully entrenched in their cases and not willing to budge.

How Does The Process Work

Mediation is usually held at the mediator's office or at the office of either counsel. It is generally scheduled for a full day and may go into the evening if positions are far apart or the session begins later in the morning. The mediator serves as a third party "go-between" or facilitator who is unbiased and does not give a substantive opinion on the case. Often, mediators are retired judges or experienced senior attorneys.

In terms of process, the mediator makes a general statement of his or her background and ground rules, and explains the process and how it will work. He or she invites the parties and/or their counsel to make opening statements. After those are made, the parties and counsel split into different rooms. From that point forward, the mediator goes from room to room in caucus to discuss strengths and weaknesses of the case, nuances, questions, and concerns. During this process, the mediator is trying to coax the parties to attach a dollar figure to their case for an offer or demand. He or she relays those figures back and forth to facilitate closing the gap in positions. If the mediation is successful, the parties will close the gap in positions and agree to a settlement that will be reduced to writing in a settlement agreement and final proposed consent order to be presented to the court for approval.