Mediation is a form of alternative dispute resolution – a way to resolve a dispute on your own terms without going through a time-consuming trial where your fate is in the hands of jurors.
Mediation is a way for the parties to come together in a less formal way than trial in hopes to come to an agreement and settle. Typically in mediation, there’s one mediator who’s a neutral party, and the two parties meet and separate into two different rooms. The mediator goes back and forth between the two parties as they attempt to negotiate a settlement.
Q: Can I have a lawyer in mediation?
The lawyers are involved in helping the client make decisions and it is very beneficial to have your lawyer present. The attorneys advise on everything. It’s a negotiation back and forth. Sometimes the settlement negotiations go back dozens of times and sometimes they only go back once or twice. Sometimes we get a case settled in mediation or sometimes they offer what we think is an unreasonably low offer. If that happens, we proceed to trial if necessary.
Q: How often is mediation successful in personal injury cases?
The majority of the time it is successful. The good thing about mediation is that it saves all the cost and time of going to trial. If mediation does fail and break down, unfortunately, our clients are looking at a long road going to trial to get a verdict.
You never know what a jury’s going to do. Mediation takes away the risk of not getting what they would want as a settlement. It also saves on the cost and time of actually going to trial.
Q: Do you ever advise against mediation?
Yes. There are instances where we might be up against a certain insurance company and we know that they’re not going to go above a certain amount of money. There’s no point in going to mediation because we’re not going to get the type of offer we think is reasonable for a client.
Also, there’s a chance you won’t get punitive damages in mediation because no defendant is going to agree to it. In mediation, you go over what to expect to get out of the trial. It could be a factor in the settlement negotiations.
But when you settle on something, you don’t always specifically say, this is for punitive damages. It’s just one of the factors in the case for the final settlement. You can discuss punitive damages, and the parties can go back and forth. The mediator can tell the parties what he or she thinks and whether punitive damages would or wouldn’t be awarded at trial.