An Introduction to the Mediation Process for Personal Injury Cases
At the Law Offices of Kevin McConnell, we use the mediation process to help resolve injury claims to get our clients paid the money they deserve without the delay, risk, or expense of a jury trial. We offer this memo to provide some basic information about the mediation process. We find that thorough preparation is the key to a successful mediation and a good settlement. The following is intended to provide you with a general description of the mediation process and help you prepare for mediation.
What is Mediation?
Mediation is a voluntary settlement process where the parties and lawyers involved in a lawsuit meet to discuss settlement of the case. Mediations are conducted with the assistance of one or more trained mediators who are usually lawyers with experience in the area of the dispute. Mediation is a quick, private, fair, and inexpensive path to settlement when compared to taking a case all the way to a trial. Mediation sessions can be scheduled within a few weeks and most sessions last only a few hours or a day, depending on the type of case. In contrast, lawsuits often take many months, or even years, to resolve with a trial.
Preparation for Mediation
Prior to the mediation, you will need to meet with your attorney to discuss in detail the expected course of the mediation, your part in that process, and the range of value or results you can expect at the mediation. This memo is offered to familiarize you with the process, not as a replacement for meeting with your attorney to prepare.
Mechanics of Mediation
Your attorney will be with you and will represent you throughout the mediation–you will never be left alone or exposed to the mediator or the other parties or attorneys without your lawyer present. The mediator is there to foster a conversation about settlement and to overcome obstacles to settlement encountered along the way. Everything said to the mediator is confidential and will not be shared with the other party unless authorized. The mediator is not a judge, juror, or arbitrator–she/he is not there to make decisions about your case but to provide an opportunity for you and your opponent to reach an agreement about the case.
Most mediations start with a joint session, including all parties and attorneys, to discuss the case. Many mediators may offer you the chance to talk about your injuries, your symptoms, or how the case has affected you and your family. This is a very informal session and is completely voluntary. However, it does give the other side a chance to get to know what you have been through and we find this to be very helpful.
After the initial session, the parties and their attorneys typically split up into separate group with each side in a different room. The mediator moves back and forth to discuss the issues and deliver settlement demands and offers. At each new round, you will have a chance to ask your attorney any questions and discuss privately each new offer.
Cost of Mediation
Mediators typically charge several hundred dollars per hour split between the number of sides to the case. In a typical case, your share of mediation fees could run several hundred dollars or more depending upon the length and complexity of the mediation. In many instances we have been able to get the defense to pay the mediator’s fees as additional consideration if the case settles at mediation.
Benefits of Mediation
Simply stated, mediation settles cases. At mediation, you are the decision maker. if the case does not settle at mediation and heads toward trial, you are dependent upon others, such as judges and jurors, to make decisions about your case and what you must accept as compensation.
Mediation is relatively inexpensive and quick and the result is known and the settlement paid in a very short time. Taking a case to trial involves delays–often months or years–and usually involves thousands, even tens of thousands of dollars in costs with no guarantee of the result. Finally, nearly every trial has the potential for a very high verdict or a painfully low verdict, all on the same set of facts. Juries are, in a word, unpredictable. In evaluating the benefit of going to trial, the wise client (and attorney) will weigh the additional costs against the possible high and low verdict.
Mediation is Confidential
Under California law, what you say during mediation cannot legally be revealed outside the mediation proceedings or used later in a court of law. This allows the parties and their attorneys to candidly discuss the issues and the value of settlement without fear that it will later be used against them.
What if Mediation is Unsuccessful?
If your case does not settle at mediation you get right back in get in line for trial. In some cases, a jury trial is simply necessary to reach a just and fair resolution and to fairly compensate you. However, we feel that every client deserves a chance to explore settlement through mediation long before committing to the expense and risk of a jury or court trial.
More Information About Mediation
For additional information, contact Kevin McConnell at the Law Offices of Kevin McConnell or consult one of the following sources: