Mediation in a Personal Injury Settlement

Mediation in a Personal Injury Settlement

This article provides an overview of mediation in personal injury settlement and the pros and cons of using mediation to resolve a personal injury dispute.  We will examine the usefulness of the process and consider the benefits that make it a valuable option to settle a personal injury case.

The process can often feel overwhelming and unnecessary for someone facing mediation in a personal injury settlement discussion.  They may wonder if trying mediation is worth it, if the case will settle, and whether they will recover what they had hoped. Mediation can be a helpful tool when the parties would like to have control over the outcome of the case, but for someone who has little or no exposure, there is often a distrust of the process and a reluctance to participate fully.  

Personal Injury Law: 

Torts are an area of civil law that often governs personal injury. This area allows a party to ask for damages for a wrong that was done to them. It includes things like assault, battery, false imprisonment, a host of negligence scenarios, and product liability. A person injured in an accident or someone who used a defective product may use this area of law to bring a claim. A person may even sue for wrongful death actions in some cases. 

Personal injury law often makes the news because of big verdicts for patients who suffered damages due to medical malpractice or other negligence. Personal injury aims to award damages to people who have suffered an injury due to another’s action.  

Personal Injury Mediation:

Mediation is an alternative dispute resolution tool where the parties meet with a third-party neutral called a mediator to discuss the possible settlement ideas and attempt to reach an agreement.  Mediation often comes after the parties have tried to reach a settlement agreement through negotiation but have had little luck finding common ground.  Adding a neutral will help drive the conversation and encourage the parties to focus on the issues and interests.  Some important concepts to understand about mediation are: 

Confidential:

Mediation is usually confidential unless the parties agree otherwise.  Nothing shared during the mediation will be revealed to others, including the court. Additionally, things said to the mediator confidently are confidential unless the mediator has permission to share it.  Because personal injury claims may often involve sensitive information, keeping the claim out of public record can benefit these disputes.  

Neutral:

A neutral third party conducts mediation.  This means the mediator does not share their opinion on the case or choose a side.  It also means that the mediator needs no personal connection to the case’s outcome, such as a deal with one party or a financial gain if it ends in a certain way.  This allows the parties in a personal injury case to feel confident that the mediator will not influence them in any way.  

Not Binding:

Mediation is not typically binding on the parties. This means that if they do not reach an agreement at the end of the mediation, they can move forward with litigation or further negotiation. Because personal injury cases often involve highly emotional topics, mediation may not end in an agreement. However, it does allow the parties to have a fuller understanding of the case’s strengths.  

Voluntary:

For mediation to happen, both parties have to agree to participate. In personal injury cases, this usually happens after the parties are in the dispute unless there is an agreement covering all disputes. This is an important aspect of mediation because it ensures that one party cannot force the other into mediation.  

Representation:

Chances are, if a personal injury lawsuit is already pending, the parties will have representation, and these lawyers will likely participate actively in the mediation.  This is not always the case, but even when represented, the parties may ask their representation to let them take control for a bit.  

Steps in the Mediation Process:

Knowing what to expect from mediation will help a party prepare for the mediation and feel more at ease when they start.  Each mediation will look slightly different because a mediator will adjust the process to accommodate the parties’ needs and the mediator’s specific style.  The parties can also drive the process and ask for specific considerations. However, most mediations will have similar steps, and personal injury cases typically follow this process.  These steps include: 

Introductions:

At the beginning of the mediation, the mediator and the parties will introduce themselves, and the mediator will lay out the ground rules for mediation. This usually means that the parties will sign a confidentiality agreement, and the mediator will remind the parties about all that this entails. They will also explain their role and confirm that nothing will impede their ability to mediate the case neutrally. The mediator may also explain how the process will go so the parties can know when things will happen.  

Opening Statements:

The first thing that will happen after the mediator finishes opening the mediation is the parties’ opening statements. This is where each side has a chance to present their case and outline why they believe it should be settled according to their case. Each side will have a chance to present evidence and make their case, starting with the plaintiff and then the defendant or defendants. 

This helps the mediator and the other party see the case’s strengths and weaknesses and a fuller picture of what could happen at trial if the case does not settle. The plaintiff’s statement aims to show everyone why they should receive the value they are asking for. The defense will look to prove why they should not pay all the money asked for.  

Caucuses:

After opening statements, the bargaining process begins. The mediator usually separates the parties and asks them about the case. This allows the parties to speak more freely with the mediator, who cannot tell the other party what was said unless given permission. The mediator also usually discusses each party’s case’s strengths and weaknesses with them. During this time, parties may suggest offers and have the mediator relay these to the other party.  

Bargaining:

As the parties continue in mediation, they will move away from the facts of the case and begin focusing on the offers and counteroffers that are moving between the parties.  This is where they will attempt to hammer out an agreement and devise a solution to the case.  

Ending:

The ending of the mediation will either be an agreement signed by the parties or an agreement that the case will not be settled in this mediation and the parties need to move forward with the trial.  

Does the Process Work? 

Mediation does not mean that a case will settle, and treating the process as such will only result in disappointment. Mediation, especially in personal injury cases, does not always end in a settlement agreement. This can be for a variety of reasons, including emotions, misunderstandings, or mismanaged expectations. A party may react to the process emotionally, especially the plaintiff in a personal injury case, and will often feel as though the other party is not respecting their position.

Personal injury involves a lot of harm and emotion, so it is understandable that a party would feel emotional as they attempt to settle the case. Additionally, parties will occasionally misunderstand each other’s position and feel that they have a better or worse case than they do. When this happens, it is unlikely that the parties will settle, especially if one of the parties feels that they need to reevaluate their position. 

Finally, a party can come to mediation with expectations that do not meet the parameters of the process. For example, a party may come thinking that they will recover all that they are asking for in their complaint or that they will not have to pay anything. This will often result in mediation without an agreement because the parties cannot meet those expectations.  

When mediation does not end in an agreement, it is important to focus on the positives. First, through the mediation process, the parties could gain a better understanding of the case and how their case lines up against the opposing viewpoint. This can help with preparation for litigation and other negotiations down the road. Additionally, it can help the parties start to determine how they might be able to settle the case moving forward. 

Conclusion

While they may not come up with a solution in mediation, they will have a better understanding of what the other needs and determine how to move forward.  Finally, mediation allows the parties to present their case.  If nothing else, it identifies weaknesses in the presentation and helps the parties to see where they need to strengthen their evidence. It provides an opportunity to moot the case before trial and to watch the opposing party react.  

Therefore, even when mediation does not result in a settlement after the fact, it gives the parties insight that will help prepare them to move forward.  This fact seems to indicate the mediation is likely worth it.  

To learn more about mediation in a personal injury settlement, negotiation, and more, contact ADR Times today!

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