This article provides general information about business dispute mediation and is not legal advice. Anyone considering mediating a dispute should consult with an attorney.
Personal injury cases can benefit from mediation because it gives the parties an opportunity to resolve a dispute through guided negotiation rather than leaving the outcome entirely to a judge or jury. Personal injury mediation can address disagreements about liability, damages, insurance coverage, and settlement terms without requiring a full trial. Mediation is also quicker than waiting for a case to get to trial on a crowded docket. Mediation is less expensive because there is less litigation expense.
What Is Personal Injury Mediation?
Personal injury mediation is a form of Alternative Dispute Resolution in which a neutral mediator helps the injured party or parties and the opposing side (usually an insurance company) discuss the claim. The mediator does not decide who is right or determine how much compensation someone receives. A mediator does not make a decision on the outcome and cannot force someone to settle.
Instead, the parties decide whether to accept a settlement. Mediation may take place before a lawsuit (called pre-suit mediation), during litigation, or shortly before trial.
How Does Mediation Work in a Personal Injury Case?
Preparing for Mediation
The parties and their counsel review relevant evidence, such as medical records, medical bills, accident reports, insurance information, lost income records, and other documents related to liability and damages.
Discussing the Claim
During the mediation session, the mediator will introduce all the participants and themselves. The mediator then explains the mediation process so everyone knows how the conference will be conducted. Each side then has an opportunity to explain its position. The mediator may meet with everyone together and usually speak privately with each side (called a caucus or a breakout session.) In a caucus, the parties can speak freely about their concerns and goals. A mediator does not share what they learn in one caucus with the other side unless authorized to convey information.
Negotiating a Settlement
The parties discuss settlement offers and possible solutions. Negotiations may address medical expenses, lost wages, future medical care, pain and suffering, and other damages. The parties and the mediator can also discuss risks of trial and possible trial outcomes.
Finalizing an Agreement
If the parties reach acceptable terms, those terms can be put into a written settlement agreement. If they cannot agree, the case can go forward with additional direct negotiations, a second mediation, or another available process. The case might eventually go to trial. Mediation does not prevent a case from later going to court.
Why Personal Injury Cases May Benefit From Mediation
Mediation can offer several potential benefits:
- Faster resolution: Mediation may resolve a dispute sooner than completing a full trial, although timing varies by case. Some cases are resolved in pre-suit mediation which prevent a case from ever being filed.
- Potential cost savings: Avoiding some stages of litigation and trial preparation may reduce certain expenses. Mediation still involves costs, such as the mediator’s fee, but actual savings will depend on factors like timing. Generally speaking, mediation is less expensive than litigation through trial and a possible appeal.
- Greater control: The parties decide whether or not to accept settlement terms instead of having a judge or jury impose an outcome, and to work out the exact terms that best suit their situation.
- Privacy: Mediation is almost always conducted privately, although confidentiality rules depend on applicable law, agreements, and procedures. Mediations in Ohio are governed by the Uniform Mediation Act, which creates barriers to disclosure of mediation discussions.
- Reduced stress: Avoiding prolonged court proceedings can reduce some of the emotional strain associated with litigation. Matters such as medical treatment, lost income, and disruption of family life can be discussed off the record in a conference that is not public like a trial.
- Flexible settlement terms: Parties may negotiate payment arrangements, conduct changes, and other terms that address their specific circumstances.
- Opportunity to resolve disputed issues: Mediation can provide a setting to discuss disagreements about all aspects of the case, including liability, the extent of an injury, and the value of damages.
In some cases, the parties may also reach a partial or preliminary settlement. Certain issues can be resolved while other disputed matters remain for further negotiation or litigation.
What Can Be Addressed During Personal Injury Mediation?
Mediation may address questions about who was responsible for an accident, whether negligence occurred, and the extent of the claimant’s injuries. Discussions can also involve medical expenses, lost wages, future medical needs, pain and suffering, emotional distress, insurance coverage, and other issues related to the claim.
The process can be useful when the parties disagree about either liability or the amount of compensation involved or both.
What Happens If Mediation Does Not Result in a Settlement?
Mediation does not guarantee an agreement. If the parties cannot reach acceptable terms, they may negotiate later, have a second mediation, continue with the lawsuit, trial preparation, or another available dispute resolution process.
Even without a complete settlement, mediation may help narrow the issues. For example, the parties might agree on certain facts or damages while leaving other questions for the court.
When May Mediation Not Be Appropriate?
Mediation may be less effective when one party is unwilling to participate in good faith, important information is unavailable, legal discovery has not given the attorneys enough information to evaluate their cases, or there is little willingness to compromise. It may also be unsuitable when immediate court intervention is needed.
Whether mediation makes sense depends on the evidence, liability, damages, insurance coverage, settlement positions, stage of the dispute, and goals of the parties.
How Harold Paddock Supports Personal Injury Mediation
With more than 53 years of legal and litigation experience, Harold Paddock brings extensive court and mediation experience to civil disputes. His background includes service as a Magistrate, Settlement Week Coordinator, Court Mediator, and Senior Magistrate. His mediation work has included personal injury, wrongful death, workers’ compensation, contracts, business litigation,and many other civil matters.
Final Thoughts
Personal injury mediation can provide an alternative to resolving a dispute solely through an expensive and risky trial. It may help parties save time and certain costs, maintain greater control over settlement terms, reduce some litigation stress, and address disagreements about liability and damages. However, mediation is not suitable for every case and does not guarantee a settlement.
Frequently Asked Questions
What is personal injury mediation?
It is a process where a neutral mediator helps parties discuss a personal injury claim and negotiate a possible settlement.
Why might a personal injury case go to mediation?
Mediation may offer an opportunity to resolve disagreements about liability or damages without filing suit (called pre-suit mediation), after suit is filed but before the litigation progresses to completion, or immediately before a trial.
Does a mediator decide how much compensation I receive?
No. The mediator facilitates negotiations. The parties decide whether to accept settlement terms. A mediator makes no decision on the outcome. The parties retain the right to negotiate the exact terms and whether or not to settle on those particular points.
Is personal injury mediation confidential?
Mediation is generally private, but confidentiality protections vary according to applicable law, agreements, and procedures. Ohio has the Uniform Mediation Act, which gives the participants the freedom to talk in mediation about goals, concerns, interests, and motivations without risk of disclosure.
What happens if personal injury mediation fails?
The parties may continue with future direct negotiations, a second mediation, another available dispute resolution process, litigation, or trial preparation and eventual trial.
Can mediation help avoid a personal injury trial?
Yes, a successful settlement can resolve the dispute without a trial, but mediation does not guarantee or require that result. Mediation does increase the possibility that the case will settle, but a mediator cannot coerce a settlement.
This article provides general information about business dispute mediation and is not legal advice. Anyone considering mediating a dispute should consult with an attorney.