In a personal injury claim, mediation is a form of alternative dispute resolution. Mediation is often used before litigating a case to see if both parties can come to a possible resolution to which they can agree. Personal injury mediation can help save time and stress in a personal injury case when two parties reach a settlement they are both content with. Going to court is stressful and time-consuming. A mediation is optional but other times a judge might require the parties to have a mediation.
During mediation, a neutral third party–the mediator–is responsible for the mediation process. This person is usually an attorney. A mediator does not give direct legal advice to any of the parties and is not biased toward either the Defendant or the Plaintiff. He helps both parties negotiate without giving a specific resolution to the conflict.
The attorneys from Trent Law Firm have prepared a guide for you in how to prepare for and participate in mediation in a personal injury settlement.
Prepare for the mediation
You should prepare for a personal injury mediation with your attorney, because they have a clear understanding of the whole process. Some tips you can follow include:
Write down the points you think would be most relevant to discuss in the mediation session. Examples of these include defining the problem and what your expectations from the other party are. During this process, it’s important to remain realistic.
Have the evidence that supports your claims. Evidence is the single most important piece in a personal injury claim.
Dress properly. It is important to transmit seriousness and neutrality in a mediation.
Be attentive. Missing details can be a crucial misstep in a mediation and can also make the process longer than it has to be.
Try to be calm during the mediation. A personal injury can cause severe consequences and put a person through a lot of pain and suffering. However, it is best to not be overly emotional. Rather, think with a cool head.
Be familiar with the process
There are four main stages in the mediation process.
Introduction: In this phase the mediator introduces themselves and gives an opening statement. They’ll do an ethics check and discuss administrative matters such as the fee and signing of Agreement to Mediate.
The mediator creates a schedule that includes breaks, lunch, or additional pauses for private meetings. They explain the rules of conduct, which note that all parties must express themselves with courtesy and allow the other to express their point of view or suggestions. The mediator notes that the goal is to have a healthy conversation that leads to a settlement acceptable to both parties. They reiterate that everything is confidential.
Problem determination: In this stage each party presents their position, arguments, and evidence. Issues such as negligence, pain and suffering, and others surface. Determining fault can become one of the most troubling issues when presenting personal injury litigation. Physical or non-physical evidence should be used to determine fault, and both types of evidence can be important. This is also when medical bills and short or long-term consequences from the injuries should be shared to underscore the reasonableness of the compensation that the injured party is looking for.
Generation of alternatives: Each party individually has a meeting with the mediator to discuss their areas of settlement. The mediator makes a realistic assessment of the strong and the weak points of each party’s position.
Generally, what is discussed is the type of compensation. In personal injury cases compensation typically comes in the form of paid monetary damages which are used to: pay medical bills, cover lost wages as the result of injury, compensate for damages, or compensate for emotional distress, and more. An important point to consider is the Defendant’s breach of duty; this can help determine the best possible alternative.
Clarification and agreement writing: When a settlement is reached during mediation, it must be written down with legal counsel present.
Bring necessary documents
Evidence is important to bring to a mediation. Evidence in personal injury is defined as something legally submitted in a court or other decision-making body to ascertain the truth of a matter. It can be divided into two types: physical and non-physical evidence.
Physical evidence can include photographs of the incident or injuries, or if it is possible, looking at the damages in person. Non-physical evidence is factual information. These can include: police reports, testimonies, medical records, medical bills, and depositions.
Understand how mediation can benefit you
Mediation can help in many ways, such as:
Lower stress: A mediation is meant to be a win-win situation. The mediator is responsible for making both parties feel they are satisfied with the result.
Help with communication: Heightened emotions are common in a personal injury case, and they can overtake our ability to communicate clearly. A mediator can help improve communication.
Find a solution: A mediator takes into consideration both parties’ points of view and finds a solution that can benefit both. Both parties must agree in order to reach an official settlement and then sign to comply with it.
Confidentiality: A mediation is completely confidential. Information, positions, and points of view expressed during mediation cannot be used in court. If parties can’t resolve their differences in mediation, they typically do go to court, where all information used in court is publicly available.
Save time: A formal legal process in court can take months to solve, in some cases even years. Here are some challenges faced in a personal injury claim. Mediation saves time.
Litigants undertake mediation to try to come to an amicable resolution that allows defendants to compensate plaintiffs without admitting liability. Mediation is done before court proceedings are begun to minimize expenses and come to a speedier and satisfying resolution. Compensation in personal injury cases typically comes in the form of paid monetary damages, which are used to pay medical bills, cover lost wages as the result of injury, compensate for damages to the person physically, compensate for emotional distress and more.