If you’ve filed a personal injury lawsuit or hired an attorney to file one for you, odds are good you are eventually going to be presented with the option, or perhaps even the obligation, to go to mediation. Mediation sounds intimidating. And it can be. But knowing what all the parts look like can make it a lot less so.

What Is A Mediation?

Mediation is just a formal opportunity to see if your case can be resolved without having to go to trial – in other words, can you settle your case. That can be an attractive prospect for both sides of a case.

What Are the Benefits of a Mediation vs. a Trial?

Neither side of a case is ever guaranteed a win in front of a jury. That’s primarily because jury trials are so unpredictable. Your attorney can draft the perfect opening

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statement, and then find out your best witness is out of the country and can no longer testify on your behalf. You can have the strongest lineup of witnesses ever assembled for a personal injury trial, and find out the morning of your trial that the judge won’t let half of them testify. Or despite all the preparation you’ve done, you might find out that the judge who’s been on your case for the last two years is out with the flu and a new judge, one who doesn’t like cases like yours, is suddenly the judge presiding over your case. But it can go both ways – the insurance company may have the same situation stood.

Given all that unpredictability, it sometimes makes sense for parties to settle a case rather than risk some undesirable result at trial. It usually means that both sides need to compromise. You may have to settle for less than what your attorney plans to ask from a jury. At the same time, the insurance company may have to pay more than what it actually believes your case is worth. It’s why they call it settling. The upsides include creating certainty and an end to litigation. Just like a judgment from a judge or a jury, a mediation is final. Even better, however, no one is allowed to appeal a mediation.



Who and What is Involved in a Mediation?

Typically, a mediation involves three different parties: 1) you and your attorney; 2) the insurance company or at-fault corporation and their attorney; and 3) the mediator. The mediator is the neutral third party who learns both sides of the case and tries to get each party to give a little to reach a resolution. Mediators are often retired judges or retired lawyers. But they don’t have to be either. Mediators tend to gain their reputation by getting deals done, so they have every incentive to get the parties to meet somewhere in the middle. How they do that is a personal thing, but it usually involves pointing out each side’s weaknesses and letting each know how poorly things could go if the case goes to a jury.

Mediators learn about the case when each side submits a “mediation statement” to the mediator – usually ahead of the mediation. The mediation statement generally lays out the facts of the case from each side’s perspective, along with some recognition of the weaknesses of the case. The statement generally wraps up with each side’s idea of how things would go in front of a jury if the case were to go to trial. There are no rules in a mediation like there are in a courtroom, so every mediation statement may be different, as every party is different, every lawyer is different, and every mediator is different.

Answers to Commonly Asked Questions About Mediations

The first two questions most lawyers get about mediation are (1) am I going to have to sit in a room and look at the person or corporation I’m suing? And (2) will their lawyer have the chance to ask me questions? The answer to both of those questions is probably no. As to question number one, sometimes, your lawyer may want to make a presentation to another side with everyone in one room prior to getting down to business. But just as often, or perhaps even more often, that’s not done. Your lawyer may simply assume that the other side has done their homework and knows how strong your case is. The answer to the second question is almost certainly “no.” But, there are no rules to mediation, so it could happen if you and your lawyer agreed that was a good idea.

How a Mediation Works

The mediation will start with the mediator putting you and your attorney in a conference room (presuming there’s no pandemic at work preventing you from going to a mediator’s office). The mediator will put the other side in their own room as well. However, if you find yourself at mediation during a pandemic, you’re much more likely to do the mediation virtually. Once you’re in your “room,” the mediator will take some time to get to know you and your attorney and do the same with the other side. Then the talk of settlement will begin.

Typically, the mediator will ask you for a number at which you will settle the case. You and your attorney will give one, and the mediator will take it to the other room. It won’t be accepted. But that’s how the dance of mediation begins. Then the mediator will get a counterproposal from the other side and bring it to you. You probably won’t accept it either. In fact, there’s a solid chance you’ll be offended by the number the other side offers. Remember, you’re involved in a negotiation. While there’s no guarantee that you’ll get a deal, it’s best to stick around beyond the first number and see where things go. Don’t get up and leave just yet. You’ve still got a whole day ahead of you.

Once the initial exchange of numbers occurs, the mediator will typically shuttle back and forth between the parties, discussing your case’s strengths and weaknesses, and opining on what the mediator thinks might happen if you don’t settle. It can be exhausting and will almost certainly be boring. Pro Tip: If you don’t feel like making small talk with your lawyer for eight hours, bring something to read.

There is no guarantee that you’ll find a settlement on the day of mediation. But there’s also no guarantee that you won’t. Parties go to mediation because more often than not, they work. But it may require patience on your part. Some mediations are done before the lunch hour. Others take days. Mediations can be stressful, frustrating, and require a great deal of soul-searching. Use the opportunity of a day of mediation to talk with your attorney about your case, how you feel about your case, and how your attorney feels about your case.

What Happens if You Don’t Reach a Settlement?

Eventually, your mediator will figure out whether the case can be resolved on the day of mediation or not. But even if you cannot arrive on a settlement amount during the mediation, don’t lose heart. Sometimes, a mediator has to continue working in the days and weeks following a mediation to work out a deal.

But the reality is, some cases are not ever going to settle, and you’ll have to take your case to court and present it to a jury. And that’s ok too. It’s what our court system is for.

Mediation does not have to be a scary proposition. Talk with your attorney. Talk with the mediator. They’re all there to help you. They’re just people too, trying to help find a resolution to your case.