Personal injury claims are frequently settled outside of court in a process known as mediation. Required by some courts before trial in many jurisdictions, mediation is a cost effective way to settle a dispute between a Defendant and a Plaintiff who has sustained an injury.
In mediation, both parties sit down with a mediator, a neutral third party, and attempt to reach a mutually satisfactory conclusion to their dispute. The process is informal, and both sides are allowed to present their argument or terms in an unburdened manner; neither side is trying to prove themselves right (or prove the other side wrong) to a judge or jury, so there is less stress involved and more room for discussion.
What to Expect in Personal Injury Mediation
1. Expect low offers at first.
Many defendants make low offers at first to quickly resolve the issue. As mediation progresses often times the offers do too.
2. Expect the process to take some time to fully resolve the dispute.
Have you ever heard the expression “Rome wasn’t built in a day?” Mediation sometimes can be solved in a few hours, but it could also take longer than one or two meetings to fully settle the dispute. However, in most cases, it usually takes less time than a trial.
3. Expect to compromise.
You won’t always get everything you want, but the process could sometimes leave you in a better position than if you had gone to trial. Both parties in the dispute must be willing to negotiate and come to a mutual agreement or the mediation will not be successful. Walking into mediation with a strict set of demands will not aid in the process and will many times result in an unsuccessful attempt at resolution.
4. Expect to pay for a good mediator.
Both parties usually split the fees of mediation, unless agreed upon otherwise. Most plaintiffs’ attorneys are retained based on a contingency fee agreement. This type of agreement means that all attorney fees and costs are taken out of the settlement and nothing is paid up front. With that said, if either you or the other party are not willing to compromise on the matter, or if you are not willing to pay a mediator an hourly rate ($300-500/hour), then mediation may not be right for you.
5. Expect to either go to trial or sign an agreement.
The reality of mediation is that the parties either reach a mutual agreement and sign a settlement or they end up going to trial. So when going into mediation, make sure you keep that in mind.
6. Expect everything said in mediation to be kept confidential.
Whatever is said in mediation, stays in mediation. Everything stated in mediation is protected by the Florida Evidence Code and cannot be introduced in a trial. So, if a case ends up going to trial, everything said in mediation is confidential and all the jury will know is that both parties participated in mediation and that it was unsuccessful. This provides for a smoother mediation because neither party is afraid to say things that may be used against them in a jury trial.
Mediation isn’t always right for everyone. Both parties must be willing to compromise. In order to reach a successful outcome, both parties must have an open mind for the mediation process. If used correctly, mediation can serve as an easier and more cost-effective method of resolution. More and more cases are being settled pre-trial in mediation and saving both the defendant and the injured plaintiff substantial amounts of time and money.