Mediation is one of the settlement negotiation “tools” that the parties to an injury action can use to reach a settlement prior to later hearings and trial. Like any other way of settling an injury claim, mediations have their ups and downs. I, personally, believe that the advantages of a mediation in front of a compelling mediator far outweight the possible drawbacks, especially if the case involves serious injuries, substantial wage loss and major pain and suffering.
Mediation is a meeting between the parties to the injury claim and the mediator in an informal setting, that usually takes place soon after the written discovery is complete and the deposition of the injured person is taken. It is an informal hearing that takes place at a mediator’s office. In the beginning of that meeting, the mediator, who is usually as seasoned attorney who practiced in the area of injury law or a retired judge, explains the rules of mediation and reminds the parties that whatever settlement they achieve at the mediation, if any, will remain confidential as required by law.
Then, the mediator will allow the parties to present their case (although not always) and then separate the parties (usually the Plaintiff and the attorne for the insurance company) into separate rooms (caucuses). Then the negotiation will begin. The insurance company’s attorney will routinely start the negotiations with an unreasonably low dollar figure, while the plaintiff’s attorney will recommend an unreasonable high figure. The mediator will be going back and forth between the caucuses, bringing arguments to their attention why the should move closer to the other side in their position, hoping that a few hours later (or a full working day later), the parties will reach some kind of compromise.
The advantages of the mediation process are the lack of anxiety and stress associated with an informal negotiations process and the statistically high rate of settlements at a mediation of injury cases. After a relatively stressful deposition testimony, at which the injured person is forced to answer the opposing attorney’s questions, many of which are designed to defeat the injured parties claims, the claimant can feel relieved at the mediation in that whatever he or his attorney suggests is not a testimony and has no affect on the case should parties not reach a settlement. Further, getting an opinion of a seasoned attorney on a case may also prove to be very useful regardless of whether the case settles at a mediation.
The main disadvantages of a mediation are that they can be relatively expensive (each party may be required to pay $1,500 or more, depending on how many hours the mediation lasts), and that it is non-binding. In other words, it is possible for the parties to spend all day negotiating, but not reaching a settlement agreement.
One of the common mistakes that injured claimants make when going to the mediation is having a certain, solid expectation – a certain dollar amount they have in mind which they expect to receive for their injuries and damages and below which they are unwilling to negotiate, no matter what. This is not a good mindset for mediation (or any other negotiations for that matter), as being flexible and keeping an open mind are critical to successful mediation. You have to remember that no one really gets all they want at a mediation, as mediating a case is all about finding a compromise and having both parties give something up in order to find a short-cut to the stressful and expensive litigation process.
If you are about to have a mediation of your injury case, it is crucial that you realize and remember that mediation is about flexibility and about keeping an open mind. Too many claimants act impulsively on those expectations and walk out of the mediator’s office as soon as they hear the initial, very low settlement offer of the insurance company, instead of exercising the ever important patience at mediations, listening to the arguments of all the involved parties and acting accordingly.