A mediation is an alternative dispute resolution procedure where both sides to a lawsuit come together in an effort to reach a voluntary agreement. Sometimes mediation is court ordered—that is, the judge requires the parties go to mediation before the case can be set for trial. Other times the parties agree among themselves to go to mediation. Whether mediation is court ordered or voluntary, the decision whether to settle at mediation is always voluntary. In other words, nobody can force the defendants to offer a certain amount of money at mediation. Likewise, nobody can force the plaintiff to accept what the defendants are offering.
The vast majority of personal injury cases settle. Mediation is a popular tool that the parties use to try to reach a settlement. Even personal injury cases that do not settle at mediation may settle at some point after the mediation.
The Mediation Process
Mediations are normally set weeks or months in advance. This gives the parties sufficient time to prepare. For the plaintiff’s side, this allows the attorney enough time to decide what type of presentation to make, to create the presentation, and to prepare the client. For the defense, this allows them time to evaluate the case and decide the amount of settlement authority that the insurance adjuster or defense attorney will have at the mediation. Many insurance companies have a number of steps they go through in deciding the value of cases. The process can take awhile, especially with large claims.
A mediation can take place at any time. Some mediations take place before a lawsuit is even filed. Others take place after a lawsuit is filed, but early in the lawsuit process. Other times mediation takes place months or years after a lawsuit is filed and the parties have taken the depositions of multiple witnesses and exchanged evidence.
There are many mediation services in Georgia. In Atlanta the most popular mediation companies for personal injury cases are Miles Mediation, Henning Mediation, and BAY Mediation. The mediation normally takes place at the mediation company’s office. There are times where the mediation may be held at a different location, such as an attorney’s office.
The person who helps the parties try to settle a dispute at mediation is called the mediator. The parties choose the mediator. Many attorneys have their own favorite mediators and will use a mediator they feel comfortable with using. The choice of mediator depends on a variety of factors, including the type of case, the mediator’s experience, and the parties’ prior experience with the mediator.
Before the mediation, both sides normally send the mediator a confidential mediation statement. This statement serves a few purposes. First, it allows the mediator to have an understanding of the case. Attorneys generally want the mediator to be prepared before walking into the room the day of mediation. Second, it gives both sides an opportunity to let the mediator know about their positions on a number of issues. Third, it gives the parties an opportunity to educate the mediator about any potential hurdles to reaching a successful resolution, such as factual disputes or differing interpretations of the law.
On the morning of mediation, the clients for both sides and their attorneys meet with each other in their designated room for the day. The plaintiff and his or her attorney are in one room, and the defense is in another room. The mediator will generally come in and introduce himself to everyone and ask the attorneys whether there is anything to talk about before the mediation starts.
Once the initial introduction period is over, the mediator will bring the parties into the same room. Many times the mediator brings the defendants and their attorneys into the room the plaintiff is in. The mediator will then go over the process with all the parties together. At this point, the mediator generally has everyone sign the mediation agreement, which includes a provision stating that the mediation is confidential. Whatever happens at mediation cannot be used later by or against either side.
When the mediator concludes his initial statement to the parties, each side is given the opportunity to make a presentation. This is referred to as an opening statement. There are different philosophies about the level of detail to include in an opening, and it varies by case depending on a number of factors. Some cases call for a detailed, lengthy presentation that includes laying out all the evidence and arguments the attorney will use at trial. In other cases, a brief statement and a conciliatory tone may be appropriate. An experienced personal injury attorney will know how to strike the right balance and make the appropriate presentation.
The plaintiff’s attorney goes first in the opening statement process. When the plaintiff’s presentation is over, the defendant’s attorney is given an opportunity to make a presentation. Again, the extent of the presentation and the tone varies depending on a number of factors.
The mediator normally gives the individual parties an opportunity to speak after the attorneys have made their presentation. Clients are not required to say anything at mediation. This is not like a deposition, hearing, or trial, where somebody may be asking you questions. The decision on if a statement should be made, and if so, what should be said, depends on the case. Some clients really want to say something. Others do not want to say anything. The attorneys should talk with their clients about the mediation process prior to a mediation, and this should include a discussion about what, if anything, the client should say.
When the opening presentations are done, the parties are almost always in separate rooms for the rest of the day. During this time, the mediator goes back and forth between the two rooms. These are called caucus sessions. In caucus sessions the mediator talks to the client and the attorney about the other side’s offer, and the strengths and weaknesses of the case. The mediator’s job is to try to get the parties to reach an agreement.
It is not unusual for a plaintiff to start high with his or her demand and for a defendant to start low with its offer. As the day progresses, the defendant’s offer normally goes up and the plaintiff’s demand goes down. This continues back and forth until the parties see if they can get close enough to reach an agreement. A defendant’s initial offer may be very low and not really be an indication of what they are offering. We have had mediations where the defense started at $50,000, but the case settled for $1,000,000. Conversely, we have had mediations where the initial offer was $100,000, but the top offer was $150,000.
If the case settles at mediation, the case is over. The defense will prepare the settlement documents for the plaintiff to sign and send the documents and the check to the plaintiff’s lawyer days or weeks after the mediation is over.
If the case does not settle at mediation, it does not automatically you are going to court. Many cases settle after mediation. Some may settle days or weeks later, while others may settle a year or more later on the courthouse steps.
Benefits of Mediation
There are many benefits to mediation. One of the major benefits is that the process is voluntary. Nobody is making decisions for you at a mediation. A personal injury plaintiff decides whether to accept a defendant’s offer. At trial, the opposite is true. The decisions are not voluntary. A judge or jury makes the decisions. A jury normally decides whether a defendant is liable and how much money a plaintiff is entitled to receive for their damages. The judge rules on legal issues. In some cases though, the parties agree to have a judge conduct the whole trial and make all decisions without a jury. This is referred to as a bench trial. Either way, at trial, the parties lose control.
Another benefit is that the parties best equipped to make the decision are the ones making the decisions. The attorneys should know the facts and legal issues better than anyone. A mediation gives the people that know the most about the case an opportunity to decide what their case is worth.
Time is another benefit. Getting to trial can take a long time. It is not unusual for it to take two to three years, or longer, to get to trial after a lawsuit is filed. On the other hand, a mediation can be conducted at any time. This can help the parties reach a final decision earlier in the process to give them closure and also to avoid the time and money of going to trial.
Negatives of Mediation
One of the negatives of mediation is a byproduct of one of the positives. Because the settlement process is voluntary, nobody can force the defendant to offer more money. At trial, a judge or jury decides what the case is worth and the defendant is required to pay money. If a defendant is not offering a fair amount of money at mediation, a trial may be the better option.
Another negative is confidentiality. There are many cases where a public trial and verdict would serve the public good. For example, cases involving a dangerous product, a careless doctor, or a reckless company, may be settled confidentiality and swept under the rug at mediation. A trial can help shine a light on dangerous companies and individuals.
The cost of mediation can be a negative. Mediations cost money because the mediator has to be paid. Mediators normally charge an hourly rate per party, and each party is responsible for paying the cost. Some small cases may not be appropriate for mediation because the costs can take up a significant amount of money that could go into the injured plaintiff’s pocket.
An often over looked downside of mediation is that some clients do want their day in court. They want their story to be heard by members of the community, and they want those members of the community to decide the case. This can sometimes be a stronger consideration than money, and if it is, a mediation may not lead to a successful outcome.
At The Champion Firm, our attorneys have extensive experience conducting mediations in a variety of personal injury cases. Because many cases settle, it is important to have an attorney on your side who can make a persuasive mediation presentation and who has strong negotiation skills. This can help you get a higher offer at mediation without having to wait years to go to trial. Of course, a trial may be necessary and we prepare all our cases as if they were going to trial. This way, if the case does not settle, we are prepared for court.
Is Mediation Right For You?
If you have any questions about your personal injury case, including whether a mediation may be an option for settling your case, call us today.