Personal injury law is designed to help and protect those injured or harmed due to the negligence of another person or entity. Personal injury can vary from mild to severe types of injuries and can happen in many different circumstances.
Among the most common types of personal injury claims are:
- Wrongful death: when a person or entity causes someone’s death due to negligence.
- Dangerous and unsafe premises: when property owners or managers fail to protect others from dangerous conditions.
- Traffic injuries, such as injuries sustained in car accidents, truck crashes, motorcycle accidents.
However, making a claim for personal injury can be a long, complex process. Such a claim involves many different steps and phases. One way to bypass a legal trial, its cost and stress, is to resolve a claim through the mediation process.
Mediation in a personal injury settlement can help save time and money by assisting parties in reaching a settlement through the use of an unaffiliated third party, a professional mediator. Taking a case to court can be a long and difficult process. Alternatively, when the Defendant and the Plaintiff are able to mediate a solution that works for both parties, a case can be resolved far more efficiently and effectively.
What is a personal injury mediation?
In a personal injury claim, mediation is a form of alternative dispute resolution that is engaged in before litigating a case. It’s an effort to have both parties have a conversation about possible resolutions.
Mediators are neutral and are not biased towards either of the parties. Mediation in a personal injury settlement has been shown to be a very effective means of resolving disputes. It can work for personal injury especially well because it helps to address–without the time and cost of litigation–emotionally charged aspects and economic issues that often have to be considered.
What happens during mediation?
During mediation, a neutral third party who is trained in mediation and conflict resolution techniques is responsible for facilitating the mediation process. This person is often an attorney or retired judge.
A mediator does not give legal advice and is not biased toward either Defendant or Plaintiff. They help both parties negotiate a satisfactory settlement.
Mediation can be in an informal environment or a scheduled settlement conference that is agreed upon by both parties. Mediation in a personal injury settlement follows a typical structure and timeline but can vary slightly. A typical mediation for a personal injury claim looks like this:
- Introduction: At the start of a mediation, all parties meet in one room and the mediator gives an opening statement discussing the goals of the mediation. They will do an ethics check and discuss administrative matters.
The mediator explains the rules of conduct, which stipulate how parties must be courteous and allow the other to express their point of view or suggestions. The mediator will encourage a healthy conversation that can lead to settlement and will reiterate that everything is confidential. The mediator also creates a schedule that includes breaks, lunch, or pauses for private meetings.
- Problem determination: In this stage, each party presents its position, arguments, and evidence. It is important in this phase to surface issues resulting from the injury, such as physical harm, pain and suffering, and others.
This is also the phase in which to present medical bills, short or long-term consequences from the injuries, and to show the injury’s impact and the justification of seeking the monetary award a plaintiff is asking for.
- Generation of alternatives: Each party individually meets with the mediator to discuss their areas of settlement. The mediator makes a realistic assessment of the strong and the weak points of each party’s position. Very often, the mediator goes back and forth between two rooms, carrying each party’s claims and suggestions that have been formulated with the help of their attorneys. The mediator suggests alternative ways to address claims and demands or financial amounts.
Generally what is negotiated is compensation, typically in the form of paid monetary damages, that is used to pay medical bills, cover lost wages, compensate for damages, or compensate for emotional distress and more. An important point to consider is the breach of duty of care that Defendant may have had.
- Clarification and agreement writing: When a settlement is reached during mediation, it is written with legal counsel present, and both parties to the dispute must fully understand and agree to the written settlement before signing it. Generally, an agreement precludes either party from later engaging in litigation over the matter.
The mediation process is completely confidential, and no information elicited during mediation can be used later in a legal proceeding.
How do you prepare for Mediation in a Personal Injury Claim?
Being well prepared for a mediation session can help ease some stress of the whole process. It is recommended that you prepare for a personal injury mediation with your attorney; they can provide insight and information on how it works. However, there are also other recommendations to follow.
- Note down what points and issues you think would be most relevant to discuss in the mediation session. Examples of these include defining the problem and what you are looking for from the other party.
- Make sure you have evidence–bills, statements of lost wages, or salary–at hand.
- Dress for success. You want to transmit seriousness in a mediation.
- Be attentive during the whole process. You don’t want to miss details; doing so can be a crucial misstep in mediation and make the process longer than it has to be.
- Try to be as calm as possible during the mediation. Mediation is a day(s) long conversation facilitated by the mediator. You’ll be best able to participate in negotiations when you’re thinking calmly and coolly.
Do cases usually settle at mediation?
Mediation is very successful in resolving disputes. The American Arbitration Association reports an 85 percent success rate. Overall, the overwhelming majority of personal injury claims settle outside of court without going to trial.
What should I bring to mediation?
Bringing evidence is important for a successful mediation session. Evidence in personal injury is defined as items that can be legally submitted in court or other decision-making body to ascertain the truth of a matter. Evidence can be physical or non-physical.
Physical evidence is evidence that can be seen, and it can be very impactful. Physical evidence can include:
- Seeing the damages in person, like a scar or crippling condition a person contracted through the personal injury.
- Photographs from the immediate scene of the injury, wrecked car, or hospital or rehab facility.
Non-physical evidence is factual information or testimony. This type of evidence becomes very important in a case since physical evidence might be limited. It can include police reports, medical records and bills, and depositions.
Police reports from the incident are generally accepted as factual and unbiased information. A police report can help demonstrate a degree of breach of duty of care in the incident.
- Expert witnesses: These are experts with knowledge or experience in a particular field or discipline who can provide an impartial expert opinion on evidence. For example, a medical expert witness may testify to the long-term consequences of an injury.
- Eyewitnesses: A person who can attest to and confirm what happened at a scene.
These are detailed records of injuries that are presented in X-rays, surgical records, or lab test results. These substantiate the damage a defendant is claiming took place.
Medical bills help to demonstrate the financial impact that the injuries have caused and can include bills, hospital stays, surgeries, medication, treatments, and follow-up care. Bills also contribute to the claims for monetary damages.
Statement of Lost Wages/Salary
If a plaintiff was unable to work for a period after an injury, a statement of any lost wages or salary helps to substantiate claims for monetary damages.
What happens when mediation fails?
A mediation session that doesn’t result in an agreement is not a failure. Often, it has helped both parties understand the other’s position and point of view and may assist in driving the parties towards an amicable settlement at a future date, through subsequent mediation, binding arbitration, or during litigation. It can also help to suggest a high/low bar for a future settlement.
If at a later date mediation again does not work, the case may have to be settled in court. However, remember that mediation gives the power to both parties to decide on how their dispute can be settled. A negotiation managed by a mediator is often the best possible outcome in a dispute–and far less costly financially and emotionally.
In a litigated case, a jury or a judge decides on the guilt or innocence of a defendant and may make the final decision on the amount of an award. Once a dispute is placed into an adversarial process like litigation, costs increase and the emotions involved can be volatile. Litigating a personal injury claim can be extremely taxing. And a successful outcome is not guaranteed. Your attorney will explain your best options to you based on your particular circumstances.
What happens after a mediation settlement?
When parties have reached a successful settlement, they sign an agreement. Once that agreement is signed it becomes a legally binding contract that is enforceable by a court. The parties must comply with the agreement within the time frame that they agreed on. Parties will typically incorporate multiple types of documents into these agreements, such as releases of liability to prevent a plaintiff from raising an additional claim for the same incident after receiving their settlement.
Once the releases are signed and the parties have complied with the agreement, the parties can send a dismissal order to the judge who was handling their case (if a judge ordered a mediation during the course of litigation). When a case is settled, parties will no longer need to return to court.
Here are some tips for a successful mediation:
- All parties must be present, and this may include the defendant, plaintiff, their attorneys, as well as insurance claim representatives or adjustors. Missing a mediation can slow down the whole process and can show bad faith. If physically being present is not possible, parties should consider meeting virtually.
- Ensure that you and your attorney have all the evidence with you.
- Build a strong argument. A mediation is ultimately two parties arguing in favor of their proposed resolution to a conflict. It is important to have an argument and understand your position clearly. The mediator will work with both parties to ensure each understands the nuances of the other’s position and will help each party to think through and consider the other’s position.
- Always maintain a respectful and courteous demeanor with the mediator and the other party. Mediation is not both parties on a collision course–that’s litigation. In mediation, your mediator helps you to collaborate to reach a successful outcome–and respectfulness and courtesy help make the process efficient and effective.
- Understand your interests and the other party’s interests.
- Be emotionally prepared. Mediation can be stressful, and many times you and the other party will not be on the same page. Feelings can run high. However, your mediator works to bring both parties together. Your arguments and evidence help to make your position persuasive and powerful and can diminish stress when it can speak for itself.
- Patience is the key. Mediation can be long and this is why it is important to prepare for it.
What does Trent Law Firm offer for Personal Injury Mediations?
At Trent Law Firm, we form a connection with our clients, get invested in their needs, and protect their legal rights against injustice.
We handle cases including, but not limited to:
- Wrongful death: when a person or entity causes someone’s death due to negligence.
- Dangerous and unsafe premises: when property owners or managers fail from protecting others from dangerous conditions.
- Auto Accidents
- Traumatic Brain Injuries
- Motorcycle accidents
We take legal action with the goal of compensating the ones affected by the negligence of the other party involved. Compensation in personal injury cases typically comes in the form of paid monetary damages, which are used to: pay medical bills, cover lost wages as the result of injury, compensate for damages to the person physically, compensate for emotional distress and more!