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Personal Injury Litigation - What Is Mediation?

Mediation is a form of "alternative dispute resolution" where the parties agree to let a person outside of the proceedings (often called a "neutral") get involved to try and settle the matter. It can happen at any time during a personal injury matter: before a personal injury case is filed, during the discovery phase, or right before trial. Mediation usually takes place in a conference-room, and not a court room, as it is not an adversarial proceeding, but an attempt at settlement and compromise. Most mediators or neutrals in personal injury cases are retired judges or lawyers with extensive experience handling personal injury matters.

A mediator does not decide a case. Rather, s/he hears the positions of the parties, and then works to help both sides reach an agreeable settlement. The mediator cannot require any party to settle, and is not there to decide who is right and who is wrong. Here is how the process works:

Typically, at the outset of a mediation, each side makes an initial presentation, and sets out an opening settlement position (either a demand or offer). Following the initial presentations, the mediator shuttles back and forth between the parties, presenting positions conveyed to her or him by the other side, asking for responses. More importantly, an experienced mediator will also inject ideas for how the case may be settled, and the mediator will highlight for each party the weaknesses in their case, as well as the strengths, so that the parties themselves can appreciate the realistic chances for success if the injury matter progresses all the way to a trial. Sometimes mediations are successful, and the case settles and progresses no further. Other times a mediation fails to result in a settlement, but can lead to ongoing negotiations to try and settle the case before the case is determined by a jury. And, of course, sometimes the parties simply cannot settle the dispute, and a trial results.

An experienced personal injury attorney can properly advise you as to if and when you, as the injured victim, should consider agreeing to a mediation proposed by the defendant (and more typically its insurance company) or if you should propose a mediation yourself. Mediations can be very effective in injury cases in which pre-trial settlement is in both parties' interests, but for whatever reason, they have been unable to reach settlement on their own. Whether you chose to pursue mediation as a way to settle your injury case or not, having a lawyer on your side who is familiar with the process, and can give you an accurate estimation of your chances for success, is an invaluable resource in getting you the compensation you deserve.

1 Comment

Great post! Mediation can help save time and money, but sometimes it's best to have a lawyer or attorney by your side to ensure you are getting what you deserve. Thanks for sharing!

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