Clients often ask me, “what is Mediation”? I will explain the purpose, process, advantages and disadvantages of mediation in a car accident or personal injury case in Colorado.
What is mediation?
In short, mediation is a confidential negotiation process that is used to resolve differences or disputes in a personal injury case conducted by an impartial party, called a mediator, with the purpose of bringing about a voluntary settlement of the case. The purpose of mediation is to help people communicate with one another, to understand each other’s case and if possible to reach an agreement that everyone can live with. It is an alternative to proceeding to trial that may save time and money for each side. In mediation there is no third party, such as a judge or jury that will make decisions; the parties themselves make the agreements. Mediation is a form of Alternative Dispute Resolution and can be used in almost any kind of legal dispute including divorce, medical malpractice, dog bites, slip and fall, car crashes, truck wrecks, and basically any dispute, as long as both parties agree to voluntarily discuss the issues, defenses and damages.
What is a mediator?
A mediator is a neutral, person who has been trained in assisting conflicting parties to reach agreements and find solutions to disputes. Mediators will not and cannot make decisions for the conflicting parities, provide any legal advice or insist on certain terms of a settlement. They can however help the two sides reach an agreement and then notify the Judge that the case has been settled or was not settled. Their job is to help both sides figure out how to get their needs met by reaching voluntary, creative and possibly unique solutions that work for everyone. Mediators in Colorado are professionals; they are usually attorneys or retired judges that have gone through extensive conflict resolution or mediation training. In a personal injury or accident case, 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 Mr. Jones to mediate the case”.
When is mediation used in a personal injury case?
If negotiations between an accident victim’s personal injury attorney and the insurance company fail to reach settlement after either verbal or written offers are exchanged, a lawsuit is usually filed. Accordingly, this means that the insurance company’s highest offer has been rejected by the client and the personal injury attorney has no choice but to file a lawsuit. 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 mediation work?
Generally, 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 informal environment. In mediation, both the injured person (plaintiff) and the party at fault for the accident (defendant), are in attendance with their lawyer. Also, in the meeting is the insurance company’s adjuster. Mediation begins with an orientation session given by the mediator where the mediation process and rules are thoroughly explained. Then, both sides explain their side of the case, kind of like an “opening statement” in a jury trial. During this statement, the attorneys can show exhibits of the client’s injuries, photos of the accident scene and of the cars involved, if it is a car accident. After these statements are finished, the mediator will usually have one party stay in the mediation conference room and the others 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 monetary settlement. Basically, the mediator is passing money figures to each party confidentially. 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. If both sides are able to reach an agreement in mediation, they will sign a written settlement document which is an enforceable contract in court.
What are the advantages to mediation?
There are many advantages to mediation.
- Mediation can help protect your privacy since it is a confidential process, unlike courtroom proceedings which are open to the public and can speed up everything.
- 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 definitely translate into 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 thousands of dollars.
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 can usually cost anywhere from $500 to over $1,000.
What are my personal views on Mediation? As a personal injury lawyer in Colorado Springs, Colorado, I feel that mediation is an excellent process because a client can get their case settled quickly without the added expense and risk of a jury trial. We can also 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. Ten different juries will come out with ten different monetary verdicts on a personal injury case. Thus, mediation is a tool that has been developed by judges and courts to save everyone the cost and risk of proceeding further. Also, 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.