Mediation is a form of alternative dispute resolution that can be used to facilitate settlement of a car accident claim, sometimes without going to court, and sometimes as part of a court order. Read on to learn more about mediation and what you can expect if your car accident case heads in this direction.
What Exactly is Mediation?
Mediation of a car accident claim is a meeting where a trained "mediator" helps you and the insurance company try to reach a settlement. Mediators can't require either party to do anything. Instead, they facilitate. They can make recommendations. They try to bring the two sides together. Mediation only occurs when all parties agree to it. You can't force the insurance company to go to mediation. (Maybe the court will require mediation later if you file a case in court, but you can't force it, now or then.) Mediation is different from arbitration of a car accident case. But, if you can't get the insurance company to agree on arbitration, mediation can be worth trying before packing your briefcase and heading to court.
What Happens at Mediation?
Normally, mediation begins with a discussion of preliminary matters, such as the fact that statements made in the mediation are not admissible in court. This rule frees everyone to discuss settlement without fear that something they say will come back to haunt them if there is no settlement and the case goes to court. You will probably be required to sign a written mediation agreement which outlines the rules of the process.
After the preliminaries, you, as the one making the claim, will be given the first chance to speak, to explain your view of the case and your proposal for how it should be resolved. Next the opposing party is given the same chance -- explains their view and their idea for how the case should be settled. After the positions of all parties are "on the table," there may be further back-and-forth discussion by the group as a whole. Or, the mediator may separate the parties and become a shuttle diplomat, speaking privately with one side and then the other and carrying new proposals back and forth.
Normally, the mediator helps each side to see the other side of the case, usually in the private meetings. For example, the mediator might tell you about weaknesses in your claim that he sees or he may give you information about how such claims usually fare in the local court. If the shuttle method is being used, the group may get back together anytime that the mediator thinks that will help. Either as a group, or through shuttle diplomacy, the discussions continue until there is an agreement or until it is clear that there won't be an agreement. In a typical car accident case, you ought to know within an hour or less whether you will be able to reach an agreement.
These days, most courts either offer or require mediation of car accident cases that have been filed in court. However, you don't have to wait for that. You can suggest mediation before a case is filed in court. If both sides agree to go to mediation, that may be a good sign that both sides would like to settle the claim without the expense of going to court.
But keep these things in mind about mediation.
- Make sure that the decision maker for the other side participates in the mediation. You don't want to reach what looks like an agreement only to have the person across the table from you turn, in front of your eyes, from an insurance claims adjuster into a car salesman who has to check with his "manager" before finalizing the deal. Make sure that the person in the room with you has complete authority to resolve your claim.
- The selection of the mediator is crucial. Some are better than others. You want a mediator who is experienced with car accident mediation. Contact the Civil Clerk of your local courthouse and ask who mediates most of their car accident cases and which mediator has the most success resolving cases at mediation. Suggest that person to the other side.
- The mediator has no authority to force an agreement. Even if the mediator thinks that you are completely reasonable in your "demand" and that the other party is completely unreasonable, the mediator cannot force that other party to do anything. Therefore, don't mediate unless you have reason to believe that the other side genuinely wants to resolve the claim, not run up your expenses, delay your claim or waste your time.
- Mediation usually costs money. You may be able to use a free community mediation program, if there is one in your area, but, more likely, there will be a charge for mediation. Again, don't waste your money at mediation unless you believe that the insurance company that you are dealing with wants to resolve the claim.
- Other than the cost, and some of your time, you have almost nothing to lose by going to mediation. Just as the mediator can't force your adversary to make an agreement, he can't force you to do so either. You can always say no. Of course, you shouldn't bother going to mediation unless you want to make a sincere effort to reach an agreement.