How Does Mediation in a Personal Injury Case Work?
Most personal injury cases settle before trial. The settlement may occur before suit is filed, or after suit is filed. Most injured persons and most insurance companies realize that a good settlement is better than a bad trial and a settlement has advantages to both parties to such cases.
As we have mentioned before, it is advantageous if the injured party has an experienced board-certified trial lawyer, because insurance companies generally pay more if they realize the opposing lawyer has substantial trial experience.
What is the Difference Between Mediation and Trial?
Mediation is different from trial in the sense that mediation is an informal process and trial is a formal process. In personal injury mediation, it is most common to have the plaintiff and his or her lawyers in one room and the defense counsel and insurance adjuster in the other room. The mediator then moves between the rooms in hopes of bringing both parties toward common ground in order to resolve the lawsuit before trial.
Settling a Personal Injury Case Through Mediation.
This is a private process where a neutral third person, a mediator helps the parties discuss and try to resolve a dispute. In a mediation, the parties have the opportunity to describe the issues, discuss their interests, and provide each other with information so as to settle a dispute. The mediator does not have the power to make a decision about the case, but can help the parties find a resolution that is satisfactory to both.
In an arbitration, the third-party arbitrator is empowered to make a decision, but not in a mediation.
The parties can agree to a presuit mediation, which is common now in Florida. After suit is filed, all Florida state courts require a mediation at a certain time, but always well in advance of trial. The courts have found that mediation is often successful, and a good way to settle cases and clear the crowded court dockets. The federal district courts also regularly issue mediation orders for their civil cases. Family law, divorce and criminal cases can be mediated too.
If your lawyer cannot settle your case with direct negotiations, a mediation is often a good way to settle a case presuit. If both parties agree, a voluntary mediation can be scheduled. If a case is filed, the court will order a mediation. Although a court ordered mediation is not voluntary, the rules and process of both mediations are generally the same.
How Do Mediations Work?
Generally your personal injury lawyer will prepare a report to the mediator, and a presentation for use at the mediation. Depending on the case, these presentations may be simple or as complicated and complex as an opening or closing argument at trial. Media type presentations such as power points and PREZI can be very effective in getting across the message to the opposing party. The summary to the mediator, which usually describes the facts of the case, the court status of the case, and the current state of negotiations, is usually confidential.
– In most states, and in Florida, a mediator has a duty of confidentiality to both sides, and generally cannot disclose confidential facts unless authorized.
– The mediator cannot disclose the status of settlement negotiations to anyone outside of the mediation, unless compelled by the court. If a case does not settle, the mediator simply tells the court it did not settle, with no further comment.
The Mediation Process
After scheduling with both parties and the mediator, the parties convene the session. With the advent of ZOOM and other similar technology, most mediations in Florida are now done remotely, which can be very convenient and cost effective, as it often eliminates the costs of travel. The parties generally split the cost of the mediator’s fees. The fees for mediators vary from city to city, but generally are very reasonable for the level of expertise and experience provided by the mediator. Most mediators are experienced lawyers, who have been certified by the Florida bar. Such certification requires submission to the bar and completion of intensive training, including conducting mediation sessions with a certified mediator.
Mediation Joint Session and Breakout Sessions.
– The mediator will describe how the process works, will explain the mediator’s role and will help establish ground rules for the session.
– Usually, the parties will then make an opening statement which may incorporate the presentations of counsel. There is rarely any need for one of the parties to talk in the joint session, unless counsel thinks it will be helpful.
– No one is put under oath.
– After a joint session, the mediator will break up the parties and move to separate sessions, shuttling back and forth between the parties. In the normal personal injury case, these are usually negotiation sessions.
How Long do Mediations Last?
A mediation may last an hour, or last a full day or several days, depending on the complexity and the number of parties. If the parties reach an agreement, the mediator may help document, which is generally an enforceable agreement. There is no requirement that a case settle at mediation. Often, soon after a mediation, the case may settle as the parties get information that helps them evaluate the case.
Trial lawyers in Florida have been mediating cases for almost 30 years, and there are many skilled mediators in all areas in Florida. It is often a cost-effective way to settle a personal injury case.
Joe Zarzaur is a Board Certified Civil Trial Attorney whose firm is dedicated to promoting community safety since 2007. ZARZAUR LAW’S AREAS OF PRACTICE: Serious Personal Injury, Product Defect, Auto Accidents, Cycling Accidents, Motor Vehicle Accidents, Products Liability, Wrongful Death, Community Safety, Boat and Jet Ski Accidents, Slip and Fall Injuries, and more. Licensed in Alabama and Florida.
If you’ve been the victim of an accident, it’s important that you don’t make any rash decisions. Put yourself in the best possible position to receive the justice you deserve. It is also important to consult with a Board Certified Trial lawyer who has the knowledge and experience to help you. We know accidents can be stressful and want to make the process as easy as possible for you. Call Zarzaur Law, P.A. today at (855) Hire-Joe for a free legal consultation or visit www.zarzaurlaw.com.