I often get questions from my injured clients about mediation. How is that different from a jury trial, and what are the advantages and disadvantages of going to a mediation to settle a case? Will a mediation still mean a fair settlement amount for the injuries?
RMD Law LLP’s attorneys have a lot of experience with mediation. The first thing to know about mediation is that it is not a formal lawsuit. No case gets filed with a court. Instead, both parties choose a mediator who is mutually agreeable. That person serves as a neutral party who helps both sides to come to an agreement.
- Light years faster than a traditional jury trial. Mediation usually only lasts one day, whereas a formal lawsuit might take years.
- Cheaper. The mediator will charge a fee for his services. This is much cheaper than a trial, where your personal injury attorney will have to pay expert witnesses, conduct depositions, and other wise run up costs that will be deducted from your settlement.
- Non-binding. If you are not happy with the mediator’s negotiated settlement offer, you and your lawyer can choose to walk away and fight in court.
- The mediator will usually be a very experienced retired judge or practicing attorney. That means they will be less swayed in cases with shocking facts, and might award less than a jury on the same case. On the other hand, it’s usually worth accepting a bit less today to avoid to time, expense, and pain of a long and protracted jury trial.
- Non-binding. This is also a disadvantage. If your case has a particularly unreasonable defense adjuster, there is nothing a mediator can do to force a settlement.
The choice of mediator is important – attorneys will look to the mediator’s background, past results, and to their own experiences when choosing a mediator. Ultimately, what both your lawyer and the defense will be looking for is a mediator who is fair. He will hear your case and help to recommend a value. The persuasive power of the mediator can help get a substantially higher offer on your case.
At the mediation, your lawyer will accompany you ready to fight and advocate on your behalf. In advance of the meeting, the attorneys will have written and submitted a detailed mediation brief describing the facts of the case, and making a legal argument for why the defense is at fault.
You should set aside the entire day for a mediation. Most of my mediations have run between 4 and 5 hours, but every case is different. Once or twice we have not left the mediation until well after dark!
The mediation itself is not like a trial with its cross-examination and strict judge. It’s comparatively low pressure. You will usually not be expected to testify and answer questions, and your lawyer will join you in a separate room from the defense entirely. Often, you will never even have to meet the defense lawyer or adjuster.
The mediator will shuttle back and forth between your room and the defense room trading arguments and counteroffers until an agreement is reached, or until one or both sides decide to take a walk. If the negotiation does break down, you are no worse off than when you started – a formal lawsuit is still on the table. There will also be snacks and refreshment, and your lawyer will keep you company.
MEDIATION – COME FOR THE SNACKS, STAY FOR THE CASH.
At the end of the day, RMD Law LLP would definitely recommend mediation in a case that looks like it might go to court, because the benefits far outweigh the drawbacks. With a skilled attorney on your team, you just may leave the mediation very happy and with a fair settlement for your case.