During the litigation process, in many instances, you will have a discussion with your lawyer about resolution of your dispute. Prior to trial, many litigants find it beneficial to attend mediation. Mediation is a formal, non-binding, settlement negotiation which is facilitated with the help of a trained, neutral mediator. A mediation allows all of the parties, and insurance representatives when necessary, to engage in face-to-face negotiations. Mediation can take the form of a full-day or half-day mediation.
HOW DOES IT WORK?
A full-day mediation usually begins with a general session. A general session will include you and your lawyer, as well as the opposing party, their lawyer, and their insurance adjuster. This is likely the first time that all of these people will be in the same room at the same time. This is important in resolving your claim, as all decision makers necessary to settle a case will be present. During the general session, your lawyer will present an overview of your legal arguments, as well as the facts and testimony which support your case—very similar to an opening statement at trial. Similarly, the opposing party’s counsel will have the opportunity to present an overview of their position, and the facts and testimony supporting the same. These presentations give the mediator a better understanding of the legal and factual issues involved.
After the general session, you and your lawyer will be assigned a private room, and the opposing party, their lawyer, and the insurance adjuster will be assigned another. You will likely not communicate directly with the other side for the remainder of the day. By being in separate rooms, it allows you and your lawyer to speak frankly and confidentiality regarding the case, as well as the settlement offers which will be passed back-and-forth throughout the day. The mediator’s job is to take pieces of information and settlement proposals between the two rooms in an effort to get the case settled. The mediator, as a neutral third party, is also in the unique position to identify the strengths and weaknesses in your case, as well as the strength and weaknesses in the opposing party’s case. By having the mediator’s neutral perspective on both parties’ cases, you can make a more informed decision in settling your case.
A half-day mediation works exactly the same as a full-day mediation; however, the parties will often forego the general session and get right down to negotiating given the shorter period of time. Half-day mediations are generally effective in cases where liability is not being contested or in family law matters.
At the end of a mediation, either an impasse will be declared by the mediator, meaning the parties were not able to come to an agreement, or the case will be settled. If settled, before you leave, the parties, with the assistance of the mediator, will draft and execute a mediated settlement agreement. This contractual document sets forth the terms the parties agreed to, and serve as a guideline for the lawyers to draft the more formalized settlement documents at a later date. Additionally, it locks in the parties. That is, nobody is able to change their mind once a mediated settlement agreement is executed.
MEDIATION, A FIRST STEP
In personal injury cases, although your case has settled, you will not be walking out of mediation with a check. It generally takes several weeks for the settlement documents to be formalized and payment issued by the insurance company. Similarly, in family law cases, you will generally not leave a mediation with a final order being executed. The lawyers in your case will utilize the mediated settlement agreement to draft the final order to submit to the Court for entry.
Mediation is a good tool to not only attempt to settle your case prior to trial, but it is also a good way to speak directly to the opposing party and the insurance adjuster. This gives them a better understanding of what they are going to face at trial if settlement is not reached. Additionally, parties tend to put forth their most compelling evidence, so mediation is also a good tool for getting sneak peek at the opposing party’s trial strategy.
WE CAN HELP!
The experienced lawyers at the Ted Smith Law Group, PLLC knows what it takes to effectively advocate for you, both a trial and mediation. Contact us today to discuss your situation and see how we can help you.
