Many, if not most, significant injury cases will end up in mediation. Attorneys and parties will voluntarily submit cases to mediation; often the judge will refer a case to mediation. If your case is being mediated, you may be unclear about what this involves, or what is expected of you at the mediation. Mediation is defined as "the attempt to settle a legal dispute through active participation of a third party (mediator) who works to find points of agreement and make those in conflict agree on a fair result." (Law.com Online Legal Dictionary). What this means in practice, in an injury case, is that you and your attorney will meet with the opposing attorney, and usually a representative from the defendant's insurance company, to settle the case. The mediator chairs the discussions.
Mediation statistics reveal that the process often succeeds more than 80% of the time, depending upon subject matter. However, mediation often fails for the simple reason the plaintiff is not properly advised of what to expect at the mediation. The plaintiff at a personal injury mediation should expect the following:
- Expect an opening statement by the defense attorney that will challenge your view of the facts and/or the value of your case. Even though the other side is there to settle, they will likely begin with an opening statement that would seem to indicate otherwise. You should not be discouraged by this as it is routine.
- Expect offers from the defense that are low, or "low ball", particularly at the outset. Even in mediations that finish with a fair offer, the initial few offers may be low -- even insultingly low. It is wise to resist the temptation to leave the mediation. Your patience in letting the process of negotiation unfold will likely be rewarded.
- Expect to hear lingo you may be unfamiliar with -- "bracketed offers", "conditional offers", "caucusing". Your attorney will know what all of this means. Do not hesitate to ask him or her for an explanation when you hear a term you are unfamiliar with.
- Expect the process to take hours, maybe even a full day, in order to work. Getting two sides of a dispute to agree to a "one size fits all" solution is not an easy task. It may take some time.
- Expect the mediator to spend a lot of time meeting with the defense side. Mediation usually begins with a "joint session" where all of the parties meet in the same room to outline the case for the mediator. After that, the parties move to separate rooms and the mediator shuttles back and forth with offers and demands, and other information. This is called "caucusing". If the mediator seems to be spending more time with the other side, take heart. That means he's trying to get them closer to your way of thinking.
- Expect to compromise, if you want a settlement. A settlement is not a victory. It is not a defeat. It is a compromise. Compromises involve giving up wants in order to meet needs. Before your mediation, you and your attorney should discuss where you can compromise -- a floor on your negotiations. Then, at mediation, be prepared to go beyond those limits, if only a little, should circumstances warrant.
Mediation has revolutionized the legal system by empowering litigants to decide the outcome of their own cases. The jury doesn't know you, doesn't know your case, and they don't have to live with the outcome. You, not they, should decide your case. Mediation is your path, as long as you know what to expect from the process.