Frequently Asked Questions - How a Mediation Can Help Settle Your Personal Injury Case?
Mediation is a form of non-binding alternative dispute resolution. It is non-binding in the sense that if the final offer is not acceptable to you, it need not be accepted and your personal injury case will proceed to a resolution in court. It is a form of alternative dispute resolution in the sense that it is an alternative way of resolving a legal dispute other than before a judge or jury in court. Mediation is a means by which a client can settle his or her lawsuit without the time, expense, and stress of testifying in court at a trial on the merits and without the delays innvolved in waiting for a trial date.
In a mediation, the attorneys for the plaintiff and defendant select a trained mediator who is acceptable to both sides. It is the job of the mediator to help them reach an agreement on a sum of money that the defendant is willing to pay and the plaintiff is willing to accept in order to resolve their differences.
Mediation succeeds where other forms of negotiation fail because the mediator has been specially trained in techniques for resolving disputes. In any dispute, each side has two positions – his or her publicly stated position and his or her real position. In the typical personal injury case, the plaintiff’s publicly stated position is that there is a sum of money – say $125,000 – below which he or she will not settle the case. However, his or her real position might be that he or she would gladly accept a lesser sum – say $75,000 – to settle the case. The defendant’s publicly stated position might be that it will not pay a dime more than a certain sum – say $30,000 – to settle the case. However, the defendant and its attorneys might be privately thinking that if they could pay a somewhat larger sum that is still less than the plaintiff is publicly demanding – say $80,000 – to be rid of the case and avoid the uncertainty and added expense of a trial, they would gladly do so.
In this example, the parties’ publicly stated positions are $95,000 apart (i.e., $125,000 demanded by the plaintiff and $30,000 offered by the defendant). It would seem that with such a wide gulf in their respective positions, a settlement is impossible. However, there is actually a $5,000 overlap in their real positions. In this example, the defendant is really willing to pay $5,000 more than the plaintiff is really willing to accept to settle the lawsuit, because the defendant is secretly willing to pay $80,000 to settle while the plaintiff would really accept $75,000 to settle. However, because neither side is willing to disclose its true position to the other side, a settlement is unlikely. The job of the mediator is to identify where such an overlap exists and, without disclosing each side’s true position, facilitate a settlement.
A mediation may be held at the mediator’s office or it may be held at the office of the attorney for one of the parties. A mediation typically begins with a joint session at which both parties, their attorneys, and the mediator are present. The mediator usually begins by welcoming the parties and providing a brief explanation of the mediation process, and then the attorney for each side is afforded an opportunity to make an opening statement. After that, the mediator meets privately with one side and then privately with the other side. Each side is encouraged to make offers. Each side is also encouraged to candidly discuss their case in private with the mediator. Information shared with the mediator during these private sessions is considered highly confidential and will not be shared with the other side unless the party providing the confidential information expressly agrees that the information can be shared. As the mediation proceeds, a good mediator may ask a party if a specific bit of information can be shared with the other side. That party may choose to share the information or not as he or she pleases. However, oftentimes when a mediator asks for permission to share a bit of information with the other side, it is because he believes, based on what he has learned in meetings with the other side, that the information may cause the other side to reevaluate it position and make an offer that is closer to what the mediator perceives may result in a settlement.
Initially, the opening offers from the two sides may be worlds apart. However, through successive private sessions and counteroffers, the gap is gradually narrowed. Eventually, the mediator gains a sense as to what each side’s real position is. If there is an overlap in the parties’ real positions (or even if there is a gap but the gap is relatively small), settlement is inevitable.
It is important to remember that a good mediator is not trying to wring every last dollar from the defendant, nor is he trying to beat down the plaintiff for the benefit of the defendant. In fact, mediators are taught that from the mediator’s perspective, the actual amount of the settlement is immaterial. What counts from the mediator’s perspective is that the parties have reached an agreement on a sum of money that is acceptable to both sides. It is part of the mediator’s job to assist each side in evaluating the risks attendant in each side’s case. If it appears that the mediator is raising issues of concern to you, it is highly likely that he is also raising issues of concern to the other side as well. A good mediator will not pick on just one side. He will work on both sides to help them appreciate issues in their respective cases and also to appreciate the benefits of reaching an out of court settlement.
A mediated settlement is beneficial to both sides, because it produces a number that is acceptable to both sides. From the plaintiff’s perspective, the plaintiff receives compensation for his or her injuries without having to endure the delays of waiting for a trial date or, if a trial results in a successful verdict, without having to wait out the additional delays while the inevitable appeal winds its way through the appellate courts. With a mediated settlement, the plaintiff avoids the stress of a trial (including rigorous cross-examination by a skilled defense attorney), as well as the uncertainty of a verdict or judgment that may be less than the amount that could have been obtained at mediation. From the defendant’s perspective, a mediated settlement offers the defendant the opportunity to resolve a liability without the added risk and expense of a trial.
The old adage that a bird in the hand is worth two in the bush is never more true that in the case of a mediated settlement.