Personal injury lawsuits can be costly and time-consuming for all parties involved. Through an informal process known as mediation, opposing parties can resolve disputes without going through a trial. If you’ve been injured in an accident someone else caused, mediation can be a faster, more cost-effective way of securing the settlement you need rather than going through all the lengthy phases of litigation.
Mediation is facilitated by a neutral third party, known as a mediator. Retired judges often serve as mediators, though it can be expensive to hire them due to their significant experience. If you are trying to keep costs down, local courts, bar associations, and non-profit organizations often provide free or inexpensive mediation services.
The role of the mediator is to facilitate and stimulate an open dialogue that enables both parties to resolve their disagreements. The mediator does not make decisions for the parties the way that arbitrators and judges do, but they will evaluate the case and help each party understand the risks involved with going to trial based on the merits of each party’s argument. During mediation, both parties will have an opportunity to air their grievances, pinpoint the strong and weak elements of each party’s case, and compromise on a fair resolution.
Because the mediator doesn’t have the power to rule on the case, mediation does not become legally binding until both parties have agreed to the terms of the decision. One of the most significant benefits of mediation is that the disputing parties control the outcome of the process. In a trial, the decision or award will be in a judge’s or jury’s hands.
What Is Mediation in a Lawsuit?
If you’ve filed a personal injury lawsuit against someone who caused you harm, the court could order you and the defendant to participate in mediation after the initial hearing. Mediation often occurs after discovery but before the pre-trial phase of a case begins.
Discovery is typically the lengthiest phase of a lawsuit. During discovery, each party will request evidence and documentation from the opposing team. That way, both parties know what evidence will be presented at trial before the trial goes ahead. Attorneys can conduct depositions, request physical exams, and issue subpoenas to obtain certain evidence.
Mediation typically only works if both parties have laid all their cards on the table concerning the lawsuit, which is why courts typically schedule mediation after discovery. If mediation is not successful, the lawsuit will proceed to trial. Mediation is usually the final phase of a lawsuit before litigation.
Although mediation is an informal process, it’s also more structured than a simple discussion. The mediation process generally follows these basic steps:
- Opening statements – First, the mediator will offer an opening statement. They’ll provide introductions, explain the steps in mediation and the goals of the process, and encourage everyone to work together to reach a fair compromise. Then, each party involved in the lawsuit will make an opening statement. They can speak about the disagreement and how it has impacted them. Depending on the mediator, both parties could also present ideas for possible resolutions in their opening statements. Interruptions are not allowed during opening statements.
- Discussion – After opening statements, the mediator will facilitate discussion between the two parties. The parties can reply to each other’s opening statements, with the goal of getting down to the core issues of the case.
- Caucus – Both parties will have the opportunity to meet with the mediator one-on-one in a meeting known as a private caucus. During the private caucus, the parties can brainstorm and exchange offers and demands through the mediator, who will go back and forth between the two meetings until, ideally, a settlement is reached. Everything discussed in a private caucus is considered confidential.
- Direct negotiation – Rarely, a mediator will preside over direct negotiations between the two parties after the caucuses are complete. However, in most cases, the two parties won’t reconvene until they come to an agreement during the private caucuses.
- Closure – If the two parties can agree on a settlement amount, they will draft a contract and sign it. If the two parties can’t agree, they could continue mediation later or over the phone. The mediator will determine whether continued discussions are likely to be fruitful.
Were you injured due to someone else’s negligence? A San Diego personal injury lawyer at Jurewitz Law Group Injury & Accident Lawyers can help you navigate the legal process and seek a favorable settlement. Contact us at (619) 233-5020 for a consultation.