When a dispute arises from a personal injury claim, the injured party may choose to take the defendant to court. Alternatively, the parties may choose to avoid time and court costs by negotiating a settlement agreeable to both sides. When the parties have a joint interest in avoiding the court system but they are having difficulty coming up with a settlement, a third option is personal injury mediation.
Personal injury mediation is a way for a claimant to seek redress for damages. This type of alternative dispute resolution (ADR) eliminates the need for traditional court involvement, as both parties are amenable to the process of using a mediator to help them come to a fair settlement agreement.
ADR options, like personal injury mediation, sidestep the roles of the courts. Mediation is a process initiated before the trial takes place. Typically, the case was placed on the court’s schedule, but the defendant and the plaintiff agreed to settle the dispute before a judge would be involved.
Sometimes, the court will order the parties to commit to mediation in an attempt to avoid backlogging the court schedule with issues that the judge believes the parties can work together to resolve. If the mediation is unsuccessful, the case will be heard in court.
A mediator is a law professional approved by both the plaintiff and the defendant who assumes the role of a neutral third party to help the participants find a resolution. In preparation for the mediation, both sides prepare and review the evidence of the case. The mediator also becomes familiar with the case in advance of the mediation session. The parties agree on a place and time to meet for mediation.
When the parties convene, the mediator may make suggestions to lead the negotiations. The parties may meet in person and then retreat to separate rooms, and the mediator will share the information between the participants.
Though the mediator evaluates the case and listens to both sides, the role of a mediator is very different from a judge. The mediator has no authority to enforce a ruling or make the parties agree. The mediator is there to facilitate the parties’ negotiations with the unbiased goal of helping the opposing sides reach an agreeable settlement.
The goal of mediation is to have both sides come to an agreement, but that does not mean that they always start out cooperating. The legal teams on both sides come prepared. The plaintiff’s attorneys will bring evidence and arguments to support the assertion that the defendant caused significant physical injury as well as related costs. The defense may try to mitigate their client’s culpability, attempt to minimize the plaintiff’s injury, or demonstrate that the injury was caused by something other than the defendant’s negligence. These competing goals are similar to the arguments that would be made in court. In mediation however, the parties are not trying to convince a judge with their line of reasoning, but rather to convince the opposing side that they can present a good case to support their claim.
In validating their opposing viewpoints, both sides can calculate how likely the chances are of prevailing at trial. Weighing these factors encourages negotiations because each side has the opportunity to find a solution that they can live with.
Mediation is a useful tool that usually meets the goal of pre-trail settlement. While the objective of mediation is to come to an agreement that allows the parties to settle out of court, this does not always happen. When mediation efforts are unsuccessful, the case proceeds to trial.
Typically, each of the participants in mediation are required to sign a confidentiality agreement that states that the discussions that take place will not be shared in a way that would influence a trial. For instance, if the defense concedes not to contest fault during mediation, that does not necessarily mean that the same will be true of their defense stance at trial. The participants in the mediation are bound to keep such terms from influencing a judge or jury in court.
When it comes to personal injury cases, mediation can be advantageous to insurance companies that seek to limit payouts for claims implicating negligent policyholders. An injured plaintiff should enter the mediation with full knowledge that the defense will likely be strongly represented, usually with at least a defense attorney and a claims adjuster. Therefore, the plaintiff should obtain their own formidable legal representation with a solid understanding of personal injury law and a wealth of experience in the processes of negotiation and mediation.
If were injured as a result of someone else’s negligence, personal injury mediation might be a viable option. Our Delaware personal injury lawyers at Jacobs & Crumplar, P.A. have extensive experience representing injured clients. Contact us online or call us at 302-656-5445 for a free consultation today. Located in Wilmington and Millsboro, Delaware, we serve clients throughout Dover, New Castle County, and Sussex County.