Overview Of Personal Injury Lawsuit Part Vi Mediation
With rare exception, a civil case – including a personal injury lawsuit – cannot proceed to trial unless the parties have first tried to settle the case at mediation. The underlying purpose of mediation is to ease the burden of overcrowded trial dockets. Each party must attend the mediation in “good faith” and have full authority to enter into a settlement. In a personal injury case the injured party and his or her attorney will be present as will the at-fault party, his or her attorney, and, a claim adjustor or litigation manager from the at-fault party’s insurance company. It’s no secret that the injured party and his attorney ultimately have to convince the insurance company representative of their position since the representative has the final say, at least from the at-fault party’s perspective, in whether the case settles and for how much.
An impartial mediator (often a practicing attorney or retired judge) chosen by the parties will preside over the mediation. At the outset of the mediation the parties will be in the same room. The mediator will make some brief opening remarks about the mediation process, most notably that he or she has no authority to compel the parties to settle, and that whatever is said by and between the parties (including the mediator) during the mediation is confidential. Thus, if the case cannot be settled and goes to trial, neither party can testify to the offers and demands that were made at mediation. After the mediator gives the opening remarks the attorneys for each side give a brief statement of their client’s position and why the case should settle on their terms. The parties then break to different conference rooms and the mediator goes back and forth in what has been coined “shuttle diplomacy” in an effort to subtly or not so subtly “twist arms” and get the parties to see the weaknesses of their own case and the strengths of the other side’s case. Mediation in a personal injury case can last for several minutes to several hours (or all day) depending on the effectiveness of the mediator and how wedded the parties are to their respective positions. It has been said that a successful mediation is when “both parties go away unhappy.” That is, the injured party did not get as much money as he or she was hoping to receive, and the at-fault party paid more than he or she wanted to pay.
If the case cannot be settled the mediator will declare an “impasse” which will be filed with the trial court. The parties are now free to proceed to trial although settlement negotiations may still continue. In my next post I will discuss the trial process.