Jan 8, 2019

Understanding Mediation for Personal Injury Victims

Word Cloud with Negotiation related tags
Word Cloud with Negotiation related tags

Mediation and Cases

At the CMC, the court will set up a mediation or arbitration date. These are meetings between both sides, where a judge or professional mediator helps both sides try and settle. So the idea is to come up with a dollar amount and avoid a trial and more expenses associated with litigation.

  • Mediation involves negotiations conducted by impartial parties. The idea is to resolve issues. There is a more particular meaning of mediation when you are referring to a personal injury case.

It involves specific procedures, expectations, and actors. Below is a closer look at the probable outcome of mediations and what a person can expect.

Mediation Participants:

  • The Mediator – A personal injury case mediator is someone that is impartial to the case and has obtained a certificate for dispute resolution. And in many situations, this is a judge or a lawyer that doesn’t have an active interest in the case and an understanding of personal injury law. Last, the mediator's fee is typically a flat fee. And the plaintiff and defendant usually divide the costs of the fee, paying their portion. A mediator’s interest in resolving disputes often results in more intervention work, as their reputation improves with each successful resolution.
  • Counsel for Defendant – This is the lawyer or lawyers that represent the defendant. But they generally have a thorough knowledge of the aspects of the case and will often lead to opening arguments that are in the best interests of the defendant. They also take part in the negotiation process for settlements the defendant may seek.
  • Insurance Adjuster or Carrier for Defendant – An insurance representative (adjuster) for the accused will represent the insured. In some cases, the defendant attends this part of the mediation. But in some situations, they do not. The adjuster will usually participate in mediations, but not always. Adjusters often have the last say on the amount of settlement offered.  And they also must accept a final demand for a settlement.
  • Counsel for Plaintiff – This is a personal injury lawyer that represents you the plaintiff. So they present the defense with a short opening presentation about the strong points of your case. They lead negotiations for the settlement and then will defer this to you.
  • Plaintiff – This refers to the individual or their legal representative that brought the claim about. Legally, the plaintiff has the last word in determinations made for amounts demanded, as well as decisions to accept settlement amounts.

What Should I Expect in a Personal Injury Mediation?

Below is a step-by-step explanation of the usual mediation process.

  1. The parties involved enter the room – Both the defendant’s and plaintiff’s sides go into a conference room. All sit on opposite sides of a conference table. Also, the mediator usually remains seated at the head of the table.
  2. The process of mediation – Here, the mediation process gets explained in about ten minutes. Hopefully, this will foster a favorable settlement environment. So decision making parties need to remain in attendance to obtain a good-faith resolution. As an encouragement to settle, the mediator may also explain the benefits of reaching an agreement and the uncertainties involved with going to trial.
  3. The plaintiff’s counsel presents the case – The plaintiff’s attorney is invited by the mediator to submit a presentation of the strong points of the case. This process can last only five minutes, or it can take as long as two hours. While they may attend, the client does not participate in this process.
  4. Defendant’s counsel presents the case – Next, the counsel of the accused gets an opportunity to show the strong points of their situation and answer any disputes of the plaintiff. They generally also highlight the fact that each party is in attendance in good faith. This process can last anywhere from a few minutes to about one hour. While they may attend, the defendant does not participate in this process.
  5. Parties of the case separate –At this point, the mediator will request that each of the parties divide into different conference rooms. While this frequently happens before the first demand, it can also occur after.
  6. Opening demand gets presented – Plaintiff makes an opening demand. (opening settlement offer).
  7. Mediation starts – Defense counsel then discusses the demand with the mediator. A counter-offer normally will be transmitted to the other party, and so on.  This process continues, and in some situations, only lasts about 30 minutes. But sometimes the back and forth takes several days.
  8. After negotiations – At this point, parties should have an agreed number for a settlement. Or the mediation will end with no settlement number.
  9. Draft documents for settlement get created – After reaching terms, signatures are added to settlement documents. This process usually takes around 30 minutes.
  10. Claims get dropped, or settlement funds get distributed – The settlement funds transfer timeline will be specified in the documents. Also, the plaintiff signs releases of defendant's potential liability. The payment deadline will usually range from as little as 15 days to 60 days.

Because of the uniqueness of a situation, each mediation process remains significantly different.