Mediation involves a neutral third party, the mediator, who works with both sides to help them reach an agreement. Mediators act like diplomats. They go back and forth between the parties, trying to move them both towards an acceptable resolution. It can be effective when both sides work in good faith and understand that avoiding a trial is a goal worth pursuing.
Nearly all personal injury cases settle. Rarely does a party want to risk an “all or nothing” outcome that’s in the hands of a jury, a group of strangers to both parties. Most of the time, we negotiate with the insurance company to close a case. If we can’t, we may use mediation to bridge the differences between us. If you’re injured in an accident and have a question about the legal process or settlement, call Tyler Fleck at (270) 446-7000 for a free consultation.
What is Mediation?
Mediation involves the parties discussing their disputes with an impartial third party who assists them in resolving their differences. This person is usually an attorney, former attorney, or a former judge. They may rely on their experience, mediation training, or both. They have no interest in who gets what in an agreement. Both sides typically split the fee charged by the mediator.
Cases that go to mediation can be disputes that haven’t lead to a lawsuit yet to those decided after a trial but are on appeal. Mediation can be used with any civil lawsuit as long as the parties are cooperative, professional, and open to reaching a resolution.
What Happens at a Mediation?
Getting the parties and their attorneys together will be as formal or informal as the mediator. Each has their own style. Some are like sheepdogs, trying to herd the parties toward an agreement. They may verbally nudge the parties toward a settlement. Other mediators may come up with their own ideas for fair compensation and be less laid back. Usually, the parties and their attorneys meet in a conference room to start the process, then go into separate rooms, with the mediator going back and forth.
What Should I Say at a Mediation?
What’s said or disclosed during a mediation can’t be used during the litigation or trial. It’s confidential to encourage both sides to open up and discuss matters freely. Personal injury cases involve someone who’s injured and someone who may be responsible because they made mistakes. We all make mistakes, and mediation can help both sides put this behind them, financially and emotionally.
Plaintiffs could be very angry because they suffered a lot due to the negligence of the other party. The defendant may feel unfairly accused and see the case as the plaintiff trying to exploit the situation to make money.
What’s the Bottom Line?
Personal injury case settlements boil down to money: What’s the plaintiff willing to take to make this issue go away? What’s the insurance company willing to pay? The plaintiff’s demand must be reasonable given the circumstances. We don’t pull figures out of thin air because that’s not acting in good faith and will antagonize the other side.
Insurance companies pay outside counsel or have their attorneys represent defendants. The companies pay the settlement, and the insured has little control over how much, or little, a payment will be.
What Happens if We Don’t Settle?
Neither party is required to settle at mediation. Often progress is made, but time runs out, and the session ends. Usually the attorneys and parties take it from there and settle it on their own, or we may meet again with the mediator.
Mediation can make the reality of a trial sharper for a plaintiff. You may get a verdict in the defendant’s favor, so there’s no recovery. Even if a judgment is for you, the jury’s decision on damages could be much less than you hoped. Those outcomes may be far less than a settlement offer that doesn’t excite you, but accepting it may be your best option.
Get the Legal Help You Need from an Attorney You Can Trust
If you or a family member are injured in an accident, we can help. If you have questions about the insurance claim or litigation process, settlements, or your rights to compensation, contact The Fleck Firm for a free consultation at (270) 446-7000. We’ll talk about your accident, the law, and your best options to proceed. Insurance companies have lawyers. You should have one too.