Car accident mediation: What is it?

car accident mediation

What is car accident mediation?

In short, car accident mediation is a confidential negotiation process that is used to reach an agreement or settlement in a personal injury case. Mediation is conducted by a neutral and unbiased person, called a mediator, who has the intention of bringing about a voluntary settlement of the case. Usually, the mediator is a retired Judge or attorney.

The purpose of mediation is to help people present their side of their case, to communicate better with each other and with the final objective of reaching a binding settlement so both sides can walk away without having to go to a Jury Trial.  Mediation is sometimes mandatory according to a contract that both parties have signed or is just voluntary as both sides would like to resolve the case without having to proceed through the uncertainty of a jury trial. Car accident mediation also saves a lot of money and time for both sides. Mediation is not always successful but has a very high success rate.  I would say that car accident mediation is successful in resolving a car accident case and reaching a settlement about 95% of the time. 

In mediation there is no judge or jury that will make decisions; both the injured car accident victim and the insurance company make the agreements. Again, this takes away the risk for both sides as they do not have an unpredictable judge or jury making this decision.

Mediation is a form of Alternative Dispute Resolution and can be used in most legal disputes, including car accident mediation, but also including divorce, medical malpractice, dog bites, slip and fall, car crashes, truck wrecks, and basically any dispute, as long as both parties agree to openly talk about the unresolved issues, defenses on both sides and the amount of conflicting damages.

For car accident mediation to work, both sides (the injured party and the insurance company adjuster) must come to the table with good intentions. In other words, both sides must come with the intention to settle the injury case. If one side or both sides have no intention of settling the case, then the mediation will not work. However, in most mediations, both sides come to the table with an open mind and are conducive to working towards a settlement agreement.

What is a car accident mediator?

A mediator is a neutral, person who has been trained in assisting conflicting parties to reach agreements and find solutions to disputes. Mediators usually go through intensive training to learn about the psychology of car accident mediation and to learn how to bring both sides to a mutually agreeable settlement. Mediators will usually not make decisions for the conflicting parties, provide any legal advice or insist on certain terms of a settlement. However, mediators can make suggestions as most mediators are former judges and lawyers. 

Mediators can work very hard to help both sides reach an agreement and then notify the Judge that the case has been settled or was not settled. The attorneys would then mutually prepare a mediation agreement and either file that with the court or file a voluntary dismissal with prejudice. After that, in a car accident mediation, the insurance company will make sure that the injured car accident victim signs a Release and will then send a settlement check to the injured victim’s attorney. 

Mediators are thoroughly trained in how to creatively work out unique solutions to help both sides reach an agreement that both sides can live with. Mediation does involve give and take, so both sides need to be flexible and give up things they may have wanted. Without some give and take, then mediation will not be successful. That is why both sides need to enter into mediation with an open mind and willing to bend their needs and desires in order to reach an agreeable compromise. You cannot always get everything you want and mediation is certainly safer than leaving your case in the hands of a totally unpredictable jury. A jury can make any decision they want and it will not always make a decision in your favor. Mediation takes away that high risk.

In a car accident mediation, the particular mediator used is agreed upon by both attorneys and sometimes one party picks a couple of mediators and then the other party says, “ok, I will agree on Judge Smith to mediate our case”. Normally, the car accident victim’s attorney will try to pick a mediator that is known to be a little pro-plaintiff, while the defense attorney will try to pick a mediator that is known to be more pro-defendant. Then, both attorneys will play a game of give and take and then both attorneys will finally agree on a mutually acceptable mediator.

When is car accident mediation used in a personal injury case?

If negotiations between a car accident victim’s attorney and the insurance company fail to reach a settlement after money offers are exchanged, a lawsuit is usually filed by the victim’s attorney. Some attorneys will not file a lawsuit if they do not believe that it is worth the risk, time and money involved. If a lawsuit is filed by the plaintiff’s attorney, then this means that the insurance company may have made no settlement offer or may have made a settlement offer that was too low and the attorney’s injured client was willing to walk away from settlement talks. In this situation, the injured victim’s attorney has 2 choices: file a lawsuit or withdraw from the case. 

Filing a lawsuit means that the case will be scheduled to be presented and argued in a trial in front of a judge and/or jury to decide the outcome. Mediation is a voluntary process, however, in Colorado, most personal injury cases will be ordered by the judge to undergo mediation in an attempt to settle the case before it can be tried in front of a jury. Mediation can be used at any time during the litigation of an injury case, not just after a lawsuit has been filed.

How does car accident mediation work?

Generally, car accident mediation takes place in a conference room at the mediator’s office or at one of the attorney’s offices, where both sides can get together and present their case in a safe, confidential and less formal environment. In mediation, both the injured person (called the plaintiff) and the party at fault for the accident (defendant, usually the insurance company representative), are in attendance with their lawyer. Also, in the meeting is the insurance company’s adjuster who represents the interests of the at-fault driver’s insurance company. In some situations, the at-fault driver is in attendance and in most situations, the at-fault driver is not in attendance. In reality, it is the insurance company’s money, not the at-fault driver’s money, as the at-fault driver is insured for causing the subject car accident.

Mediation begins with an orientation session given by the mediator where the mediation process and rules are thoroughly explained. So, the mediator will explain the rules, give advice to both sides and then let the process unfold. Then, both sides explain their side of the case, kind of like an “opening statement” is presented in a jury trial. During this “opening” statement, the attorneys can show exhibits of the client’s injuries, photos of the accident scene and of the cars involved. The plaintiff’s attorney will also present his “value” of the case, what he thinks is the settlement value of the case. Then, the insurance adjuster or defense attorney will present his side of the case. The defense attorney may argue that the car accident was not his client’s fault or that his client is only partially at fault in causing the subject car accident. Then, he will try to minimize the plaintiff’s injuries and minimize the amount of damages that the accident victim should recover. 

After these statements are concluded, the mediator will usually have one party stay in the mediation conference room and the others will go to a private office. The mediator’s job at this point is to go back and forth from one room to the other and try to get each side to reach a mutually agreeable settlement figure. Basically, the mediator is passing money figures to each party confidentially. So, the mediator will talk with the car accident victim’s attorney and the attorney will say we are seeking damages in the amount of $60,000 (as an example). Then, the mediator goes to the insurance adjuster’s room and passes on that offer. Then, the insurance adjuster or defense attorney will say we are going to offer $20,000. The offers are passed back and forth confidentially by the mediator until an agreement is made. 

Not only will offers be made by each party towards settlement but they can also explain in detail to the mediator things that may help achieve a more favorable settlement for that particular party. The mediator will try to explain to both sides the weaknesses in their case in order to get both sides to either increase or decrease their monetary offers. Good mediators can be very persuasive and it is their job to get both sides to reach a permanent settlement. If both sides are able to reach a car accident settlement agreement in mediation, both will then sign a written settlement document which is anenforceable contract in court.

What are the advantages of mediation?

There are many advantages to mediation.

  • Mediation can help protect your privacy since it is a confidential process, unlike courtroom proceedings that are open to the public. Mediation is also much faster than going through a lengthy 1-2 year battle in court.
  • If you decide not to settle your case in mediation, neither the mediator nor the participants can testify in court about what happened or what was said during mediation.
  • If you agree to settle your case at mediation, you will usually get a check from the insurance company within 2 to 3 weeks and the lawsuit will be dismissed by the Judge.
  • In mediation, each side decides their own fate and makes their own decisions, not a third person such as a mediator, judge or jury.
  • If you do not reach an agreement in mediation, you can still have your case decided by a jury of your peers.
  • Having your case decided in mediation will save you a lot of money in lower attorneys’ fees and court costs.
  • One of the main advantages to coming to a settlement in mediation is that once the settlement agreement is reached and put in writing, your life can go on and your future is decided right now, avoiding the stress and uncertainty involved in a lengthy and costly lawsuit which could take years and much more money to come out of your pocket for court costs, expert testimony and depositions, etc. 

Are there any disadvantages to mediation?

Since mediation is a voluntary process there are few if any disadvantages other than paying the cost of the mediator which usually costs anywhere from $500 to over $1,000 and is equally split between the car accident victim and the insurance company. I believe that mediation is always worth the effort as it has such a very high success rate.

What are my personal views on Mediation?

As a car accident lawyer in Fort Collins, Colorado, I feel that car accident mediation is an excellent process because a client can get their case settled quickly without the added expense and risk of a jury trial. A judge or jury trial is always a crapshoot. You can try the same car accident case 5 times to 5 different juries and you will get 5 very different results. You could lose, you could be awarded less money, so Mediation again takes away that awful risk and uncertainty.

I like to use mediation before a lawsuit is filed as many insurance companies will agree to do this rather than incur the risk and expense of litigation. So, it is a good tool to use before a lawsuit is filed. After a lawsuit is filed, mediation is a good tool to get the parties to agree to a monetary settlement before a trial happens.

This again takes out the risk of one party losing the case. In every case, one party wins and one loses so it is always a gamble to go in front of a jury. 

Importantly, in a mediation, one gets to hear the other side’s defenses and see if they may have some validity. At mediation, everyone puts their cards on the table, so to speak and each side gets to see the strengths and weaknesses of the other side’s case. In my experience, over 80% of cases settle at mediation and the other 15% or more settle just before trial. Therefore, one usually sees about 5% of cases going to an actual jury trial.