Mediation is a crucial part of resolving personal injury cases without going to trial. If you are involved in a personal injury case, understanding the mediation process can help you navigate it more effectively. As an experienced personal injury attorney in California, I have attended hundreds of mediations, and I want to share what you can expect during this process.
What is Mediation?
Mediation is an informal process where the plaintiff (injured party), the defendant, and their attorneys meet to attempt to settle the case. Unlike court proceedings, mediation does not take place in a courtroom, and participants are not under oath. It usually occurs in an office setting, often with a retired judge or experienced attorney serving as the mediator. The mediator remains neutral and facilitates negotiations between both parties to reach a fair settlement.
The Role of Attorneys in Mediation
If you are represented by an attorney, they will handle most of the communication on your behalf. Attorneys typically submit a mediation brief before the session. This document outlines the details of the case, including damages, evidence, medical records, photos, and police reports. The defense also submits their brief so the mediator has a comprehensive understanding of both sides and the key issues preventing settlement.
Who Must Be Present?
For mediation to be successful, key decision-makers must be present. This includes the injured person (plaintiff) since they must approve any settlement offer. Similarly, a representative from the insurance company or the defendant must attend, as they are responsible for approving the final settlement amount. If a decision-maker is absent, negotiations can be futile, leading to wasted time and effort.
How Long Does Mediation Last?
Mediation sessions vary in length. Some cases can be resolved in as little as an hour, while others may take four to seven hours or even span multiple days. In California, many mediations now take place over Zoom, allowing participants to join from a comfortable setting while the mediator facilitates discussions remotely.
Private Meetings with the Mediator
Often, the mediator will meet separately with each party and their attorney. This allows for candid discussions without the emotional pressure of direct confrontation. During these private meetings, the mediator may present concerns or challenges raised by the opposing side, including potential weaknesses in the case. Keeping emotions in check during mediation is crucial, as emotional reactions can derail productive negotiations.
What If Mediation Does Not Result in a Settlement?
Not all cases settle at mediation. In fact, around half of my cases do not resolve immediately. However, mediation often fosters discussions that lead to a settlement in the weeks or months following the session. If an agreement is not reached, the case continues toward trial.
Why Mediation Can Be Beneficial
Mediation offers plaintiffs an opportunity to have control over the outcome of their case, unlike a jury trial where twelve strangers decide the verdict. Jurors come from diverse backgrounds and may have biases that impact their decision-making. If mediation results in a reasonable settlement, it can provide closure and financial relief without the uncertainties of trial.
Additionally, even if you win at trial, the process does not end there. Collecting a judgment can take time, and there may be appeals or post-trial motions that prolong the case. Mediation helps avoid these extended legal battles and the associated stress.
Conclusion
Mediation is a valuable tool in personal injury cases, offering an alternative to lengthy and unpredictable jury trials. Understanding the process and approaching it with an open mind can significantly increase the chances of reaching a fair settlement. If you are involved in a personal injury case, discussing mediation with your attorney can help you determine whether it is the right option for you.
