There are methods that many lawyers use to try and settle a case or legal claim. One of these methods is called mediation. But what is mediation?
Mediation involves having a disinterested and unbiased individual (the mediator) assist the parties in reaching a settlement of the case. Usually (but not always) the mediator is an experienced attorney or sometimes a retired judge. The mediator will try to facilitate a settlement by communicating with the parties about the strengths and weaknesses of each side’s case.
Often times the mediator will go back and forth between the parties and point out certain defenses and/or the strength of certain arguments in an effort to help both sides see the risk in trying the case in court.
Mediation is purely voluntary. That is, either side is free to reject settlement proposals made during the mediation process. The mediator typically does not have authority to force either side to accept a settlement (unless the parties ask the mediator to give a binding ruling in the case). However, some mediators will agree to give his or her recommendation as to what settlement figure or range is fair.
The mediation session is confidential. Any materials submitted to the mediator are also confidential and inadmissible in a later trial. No party can subpoena the mediator or attempt to introduce statements or evidence disclosed during mediation at trial. The purpose of confidentiality is to encourage the parties to be frank, candid and open to settling the case.
Most mediators will require that each side submit some written materials and documents to the mediator explaining the nature of the case, the amount of damages claimed, and a description of each side’s weaknesses and strengths.
Each party that participates in mediation will be expected to pay a portion of the cost of mediation, unless other arrangements have been made. Sometimes the question of who bears the cost of mediation can also be negotiated during the mediation session. Most mediators will charge at least $250 – $350 per party per hour. Many good mediators charge more than this.
Often times the mediation begins by having the parties meet together with the mediator (sometimes called a ‘roundtable session’ or ‘caucus’). The mediator will explain his or her rules or procedures and ask each party to sign a confidentiality statement. Sometimes the mediator will invite either party to make an introductory statement about its case or defense. In addition to the attorneys and individual parties, the insurance company representatives may also attend the mediation.
Typically, it is the insurance representatives who have the ultimate authority to settle the case. The insurance company representatives will be evaluating the plaintiff the moment he or she steps into the room to see what type of witness you will make and how a jury might evaluate you as a person. Be mindful of this fact.
If a roundtable or “caucus” session is performed, afterwards the mediator usually will split the parties up and put them in separate rooms. The mediator typically will go back and forth between the rooms and discuss with each side the pertinent aspects and issues involved in the case.
During this process, the mediator may communicate settlement offers and counter-offers to the parties. Sometimes the mediator will explain the basis for each side’s evaluation of the claim and point out weaknesses or strengths supporting each side’s evaluation of the case. Sometimes the mediator will discuss his or her own experience in similar types of cases as a means to determine whether the communicating offer is fair and reasonable. Other times the mediator will explain the litigation process and help each party appreciate the risk and expense that a trial will cause.
Mediation can be a very productive and effective tool to settle a personal injury case. In fact, some Superior Courts in Washington State require that mediation be performed in the case before a trial can be commenced. You should definitely explore with your attorney whether mediation should be utilized in your case. Try to pick an attorney who has several years of experience in handling mediations. You will want an attorney to attend the mediation who is an expert negotiator so that you can get the best result possible in your case.
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