Personal Injury Mediation
Once a complaint is filed in circuit court and your case moves into litigation, your attorney will sit down with you and provide an overview of how the case will proceed. At this point, your attorney will explain to you everything you need to know about your deposition (see: deposition article). They will also explain to you the role that mediation will play in your case.
What is mediation?
Mediation is a process in which parties to a lawsuit, as well as their attorneys, sit down with a neutral third party—called a mediator—and work towards resolving your case in terms of settlement amount.
Who is a mediator?
A mediator is an individual—most often an attorney who has been certified as a mediator by the Florida Bar—who the parties both agree to use. If neither side can agree on a mediator, than the court will appoint one for them. Neither side wants this to happen. The mediator is a “neutral” party, meaning that he or she has no interest in the outcome of your case and resolves to remain unbiased. A mediator’s role is to facilitate negotiations between the parties after each has had the opportunity to make what is called an “opening statement.”
Will I be prepared for mediation?
Yes. Your attorney will have a face-to-face meeting with you prior to mediation to discuss what it entails and to prepare you for the process. This is also the time that your attorney will get authority to settle your case for a certain amount. It is important that they know your “bottom line” settlement number (the lowest you will take to settle your case) before mediation. This is to avoid any miscommunication about how much money you will settle for before they begin negotiating at mediation. You don’t want to be on different pages about this number once you are there. Best case scenario, worst case scenario, etc. will also be discussed.
When deciding on your settlement number, keep in mind that attorney’s fees, appropriate costs, and medical bills should be taken into account. Your attorney will provide you with fairly accurate numbers for all of these items to help you make your decision. Don’t forget to consider any recent costs also, like if you visited a doctor a few days before. It is likely your attorney does not have that bill yet.
Who else will be present?
First off, you will be present as the plaintiff. You are the most important person in the room since you, and only you, have the final say about what settlement you will take. Your attorney will also be present to advise you and represent your best interest. The defendant’s attorney and a representative from the defendant’s insurance company will be in attendance for the other party. The representative for the insurance company is called an adjuster. The reason the actual defendant is not listed here (although they may be there if the defense allows it) is because they have no say in the financial outcome of the case. It is not up to them what the insurance is willing to pay, therefore they are not needed at a settlement mediation.
What happens when I arrive?
Most mediations take place at the mediator’s office in a room with a large center table and chairs (called a conference room). Sometime the meeting can take place in another location agreed on by both sides, like the attorney’s office. Once you arrive, you will meet your attorney and begin proceedings once everyone is there and settled. In the event that you arrive before your attorney, you may greet the other party and the mediator, but do not discuss the case under any circumstances.
What occurs when mediation begins?
The parties gather together in the conference room and the mediator introduces himself, explaining his credentials and how mediation works. This part is usually directed towards you since you are usually the only person in the room who has not heard the introduction dozens of times. The mediator will discuss:
- Confidentiality: Everything that it said in the mediation is confidential and cannot be used in court. But that does not mean everything said can never be repeated. A good rule of thumb is that while statements themselves can’t be used against you, the information in those statements can.
- Impartiality: The mediator is neutral and does not takes sides. Their job is to facilitate communication between the two sides to help them reach a settlement.
- Risk factors: Risk factors means what each side has to lose and what evidence there is against their case. This is the time that both sides get to point this out directly to the opposing side.
- Compromise: In order for your case to settle, the two parties must find a compromise. You will most likely not get everything that you want. But the other side won’t either. The whole reason you are there is to figure something out that works for both of you.
- Closure: If a settlement is reached at mediation, both sides will sign something called a Mediation Settlement Agreement (appropriately enough). This is a legally binding document that holds both parties to what they said in mediation. If the case is settled then and there, it will usually be only a matter of months before you get paid.
- Control: At mediation, you and your attorney have control over the outcome. At trial, the jury does. Jury trials can be uncertain events to say the least. The same case tried before two different juries can have two completely different outcomes.
What happens next?
Each attorney will give an opening statement which allows both attorneys to educate the mediator on their view of the case and how they will be presenting their case at trial. The opening statement, which is delivered straight to the opposing attorney, is basically a picture of how the attorney will present the case in court. The case is usually painted in the best possible light at this point to persuade the other side. After your attorney’s opening statement, the first settlement offer is usually given. Opening statements can vary in both time and complexity based on the facts and circumstance of the individual case. Sometimes exhibits such as photos of the property damage or photos of your injuries are used. Medical records and exams may be used also.
Will the defense attorney speak to me?
Generally, yes. The defense attorney will turn to you, as the plaintiff, and tell you that this is the only time he or she has the opportunity to speak directly to you. An opening statement detailing issues with your case and the grounds that your case is being defended on are also explained by the defense attorney. I tell clients that it is important to listen to what the defense attorney is telling them and be polite. You will hear things that you do not agree with. Trying to interject and interrupt the defense attorney’s opening statement, or getting upset, will only cause the defense to think that you may be easily rattled on the witness stand at trial, which could harm your case.
Will I have an opportunity to speak to my attorney in private?
Absolutely, it’s part of the process. Once both sides have had their say, and made their offer and counteroffer, each party will separate into different rooms to discuss the deal. The mediator will come to each side’s room to speak with them separately in an attempt to facilitate a negotiation. He may “play devil’s advocate” with each side in an attempt to help them see the other’s point of view.
Who has the final authority over the settlement deal?
You and the insurance company. In the end, it is your injury, your damage, your money, and you’re the one that is going to have to live with the outcome. However, you did hire an attorney for a reason, so his or her input will be key. On the defendant’s side, the insurance claim adjuster has the final say.
Anything I should keep in mind?
Yes. Keep in mind these point:
- Dress appropriately– Just as with attending anything important in life, you should dress appropriately for your mediation. Looking presentable and professional is important because—more likely than not—this will be the adjuster first time meeting you as a person and their first opportunity to assess how you’ll appeal to a jury at trial.
- Confidentiality– Remember that everything that occurs during the mediation is confidential. In most jurisdictions, this means everyone in attendance at the mediation will sign a confidentiality agreement at the start of the mediation, affirming that they will not communicate the details of the mediation to anyone—aside from speaking with other staff members at your attorney’s office.
- Be on time– Just like anything in life, punctuality is key to looking prepared and put together. Also, everyone at the mediation’s time is valuable. Make sure you have the directions and phone number to the location on hand long before you are in route.
- Wait for your attorney to arrive before you say anything to anyone about the case.
NEW PORT RICHEY PERSONAL INJURY AND CIVIL TRIAL FIRM
Parties agree to attend mediation in good faith, meaning that each side is there in an attempt to work towards resolving your case. Listening to your attorney, as well as the arguments posed by the defense attorney, is important. Remember that the mediation process can be the most fruitful opportunity to bring closure to your case. At Dolman Law Group, we take time to explain the litigation process to our clients every step of the way. For more information, call (727) 853-6275.
Dolman Law Group
5435 Main Street
New Port Richey, FL 34652