Mediation is a settlement negotiation process that is overseen by an impartial person (the mediator). Mediation can be voluntary or mandatory. Most courts nowadays require the parties to attend mediation to try to get a car accident lawsuit settled. In this article, we'll take a look at how mediation works in a car accident case, and how a lawyer can help you get the best result from the process.
The first step in mediation is usually for each party's lawyer to submit a memorandum to the mediator. This document lays out each party's position on the major issues in the car accident case.
At the mediation, all parties and their lawyers will show up at the mediator's office. In mediation of car accident claims, the defendant customarily does not attend. Rather, the defendant's insurance adjuster attends for the defendant. This is because, in personal injury litigation, it is the insurer who is the real party in interest. It is the insurer's money that is at stake in the case.
The mediator will get everyone in the same room, and will usually go around the table, asking each person to make a brief statement. The mediator will ask the lawyers to summarize their main arguments, but will also generally ask the plaintiff if he/she has anything that he/she wants to say.
Good lawyers will usually review with the client what, if anything, the client should say to all sides at a mediation. As a general rule, the client should keep his/her comments to a minimum. Unless the client really, really has to say something to the defense attorney, he/she should say nothing. Similarly, the insurance adjusters rarely say anything of significance during a mediation.
After the opening statements, the mediator will separate the parties. The plaintiff and his/her lawyer will be put in one room, and the defense attorney and insurance adjuster will be put in another room. The mediator will then conduct "shuttle diplomacy" -- going back and forth between the rooms trying to figure out the plaintiff's bottom line and the defendant's top dollar. Generally, the parties do not speak directly to each other again after the opening statements, unless there is a settlement.
The mediator's usual tactics are to play devil's advocate with each side, pointing out the weaknesses in the plaintiff's case to the plaintiff and pointing out the strengths in the plaintiff's case to the defense attorney and adjuster.
If the parties come to an agreement, the mediator will usually bring everything together again and write up a brief settlement agreement for everyone to sign.
(Learn more about Alternatives to Court in Car Accident Cases.)
The mediator in car accident cases is generally either a lawyer or retired judge who specializes in mediation; in some cases the mediator may even be an active judge. Many courts that have mandatory mediation provide a judge to conduct the mediation (a judge other than the one who is assigned to the main case). The advantage of this type of court-ordered mediation is that it is free.
Mediation in the average car accident case is scheduled for a morning or an afternoon, but, if the case does not settle and the parties are making progress, a second or third session will be scheduled. Mediation does not always work, but it has a very good track record in getting cases settled.
Mediation is another stage in litigating a lawsuit. It is usually conducted after most, if not all, of the pretrial investigation process (the "discovery") has been completed.
A good lawyer helps the client in mediation by digesting all of the pretrial investigation and coming to an objective conclusion about the merits of the client's case. The lawyer advises the client as to an appropriate settlement range, an opening demand, and a sound negotiation strategy. The lawyer gives the client advice on how quickly or slowly the client should reduce his/her demand, and how the client should respond to the defendant's offers.
If the client reduces his/her demands too quickly, the defendant will think that the client's case is not very strong and will reduce its offers. On the other hand, if the client does not reduce his/her demands sufficiently, the defendant will lose interest in the mediation process and may walk out of the mediation. So, it's a pretty fine line, but an experienced attorney knows how to walk it.
Negotiation may seem easy (after all, we negotiate for ourselves every time we buy a car or a house), but negotiation in personal injury litigation is a skill that the average client can't typically master on his/her own. Good lawyers have studied negotiation tactics throughout their career and can offer clients years and decades of experience in negotiation.