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What is Mediation and How Does it work in a Personal Injury Case?

Categories:Working with an Attorney

Mediation is an informal, confidential, non-adversarial negotiation process that is used to resolve disputes. Mediation is conducted by a neutral third party called a mediator. The mediator’s objective is to help the parties come to a mutually acceptable agreement, referred to as a settlement, to resolve their case.  Often, mediation carries an informal atmosphere, which is designed to encourage open and frank communication between the parties, giving even the most contentious legal battles the potential for resolution.

Because mediations are informal, no judge or jury is present during mediation. Most of the time, mediation takes place because the parties voluntarily agree to mediate their dispute. However, even in cases where the parties prefer to go to trial, judges frequently order the parties to at least attempt mediation before going to trial on their cases.

At mediation, it is the parties themselves who will decide on a mutually acceptable settlement, rather than a judge or a jury deciding the outcome of their dispute. Thus, mediations are a type of “alternative dispute resolution,” which can be used in almost all civil lawsuits, and can occur at any time during the course of a personal injury case (and in some instances, even before the case is filed).

What is the role of a mediator?

The mediator is a neutral, third person who has no stake in the outcome of the case he or she is mediating.  The mediator must have successfully completed specific training to assist the dueling parties to find common ground and mutually agreeable solutions. Mediators cannot provide the parties with legal advice or recommend specific terms to an agreement. Mediators cannot make decisions for the parties. Their role is simply to help the parties find creative solutions that allow the parties to come up with a compromise they can live with.  In Florida, most mediators are lawyers or retired judges.  Attorneys for both sides must agree on the particular mediator in personal injury cases.

How does mediation work?

Mediation usually takes place in a neutral location – either the mediator’s office or at a court reporter’s office, where both parties are able to present their versions of the case in an appropriate space. Both parties – the plaintiff or injured party, and Defendant – the at-fault party – are present with their attorneys. The insurance company adjuster may also be present.

At the onset of mediation, the mediator often makes an introductory statement describing the mediation process and rules.  Both sides then give an opening statement presenting their versions of the case.  Typically the opening statements are just made by the lawyers, although either or both parties may occasionally speak as well. At the conclusion of these presentations, the mediator usually has the parties split up into two separate rooms to “caucus” or speak privately regarding the negotiations. The mediator then shuttles between the parties’ respective rooms, delivering messages, offers, and counteroffers between the parties. If the parties reach a settlement, the mediator may help write the agreement, which becomes a legally enforceable contract.

What are the advantages of mediation?

Mediations are advantageous for many reasons. Among them:

  • Mediations can save lots of time and money by resolving the case prior to trial.
  • Mediations empower both parties by allowing them, and not a judge or jury, to decide the settlement terms.
  • That being said, if mediation does not result in a settlement, the case can still proceed to trial.
  • If the parties are unable to settle the case during mediation, the mediation process may help the parties evaluate the strengths and weaknesses of their case for trial preparation purposes.
  • Mediation is confidential, so if settlement does not occur, no one may later testify in court regarding what was said or what happened during mediation. That confidentiality is contrary to trial proceedings, which are open to the public.
  • If the parties agree to a settlement at mediation, the case is resolved and both parties receive closure.

Having good representation by an experienced personal injury attorney during mediation is absolutely crucial to obtain the most favorable settlement possible.

If you have been injured due to another’s negligence, called the skilled attorneys at Brooks Law Group. We can help evaluate your case and determine whether you are entitled to any compensation. It is very important to have an experienced personal injury attorney advocating on your behalf, whether at mediation or at trial. Call us today.

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