Mediation and Personal Injury Cases

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When you have a personal injury claim against another party, there are several ways to resolve it. The responsible party’s insurance company might offer a fair settlement through negotiations, or you can go to court. Another option that falls somewhere in the middle of those two extremes is mediation. Here is how mediation can help you get the compensation you deserve in a personal injury case.

What is Mediation?

Mediation is a form of alternative dispute resolution (ADR) where a professional third party — the mediator – helps two or more parties to a dispute collaborate to settle their differences. Unlike arbitration or litigation, mediation is non-binding and informal, where the discussions generally take place in a comfortable, neutral location.

How Often is Mediation Used in Personal Injury Cases?

For those familiar with mediation, it’s a common strategy used in family law cases to resolve issues related to child custody, child support, asset division, and alimony. However, mediation has become a more popular solution over the years for personal injury and other areas of the law.

According to the U.S. Bureau of Justice Statistics, only about 3-4% of personal injury cases go to trial. Common personal injury cases involve things like car accidents, slip and falls, construction site accidents, defective products, and medical malpractice. In over 95% of personal injury cases, parties are able to resolve their differences before ending up in a courtroom. Many of them do so using mediation.

Why Mediation is a Good Choice

In West Virginia, mediation is mandatory in many counties in state court as part of the pre-trial process. The federal court also frequently orders parties to conduct mediation as a condition of scheduling. But many parties to a dispute also willingly schedule mediation without being told to do so by the courts. Why? Because it works so well in reaching a settlement.

Mediation allows litigants the freedom to decide the outcome of their cases without risking an adverse decision from a jury or judge. Some of the other benefits of choosing mediation include:

  • Faster resolution — Mediation can be completed quickly, while litigation might take years to resolve a case.
  • Lower cost— The court process can be expensive compared to a one-time mediation fee.
  • Privacy — Mediation matters are confidential, unlike most court cases, where everything becomes public record.
  • Informality— Mediation can be much less intimidating than having to resolve your dispute in court.

Using mediation, you can often obtain a more customized resolution that meets your specific needs and goals. This likely won’t be possible through litigation.

What is the Mediator’s Role During Mediation?

The role of the mediator is not to act as either party’s attorney or make any decisions for the litigants. Instead, it is to provide a structured and supportive environment that promotes compromise. The mediator ensures that all party’s voices get heard, with each side having an opportunity to express their concerns and explain their positions. When speaking with each party separately, the mediator might explain to one why a lower or higher settlement figure would make sense, given the non-confidential information available.

Personal Injury Mediation Strategies

When you attend mediation for your personal injury case, be prepared to listen with an open mind and compromise. Ideally, you’ll have legal representation that can guide your choices and protect your rights. The other side will likewise come to the meeting ready to make progress and avoid a costly legal battle.

Settlements in personal injury cases through mediation are meant to be fair and mutually beneficial. A good mediator will ask questions throughout the process to prompt each side to re-evaluate its position. Sometimes the mediator will go back and forth many times to exchange information that each side wants the other to know to bring the parties closer to an agreement. But the mediator will never disclose confidential information not meant for the other side.

In most, but not all, cases, the parties will reach an agreement. That agreement will be submitted to the judge for approval, after which it becomes binding. If a settlement is not reached, a mediation, the case moves forward with litigation. But, sometimes, the case will continue negotiations and reach a settlement before it is handed to a judge or jury for a verdict.

Schedule a Free Consultation With Our West Virginia Mediation Law Firm

With over 30 years of legal practice devoted to personal injury cases, Tim Bailey at Bailey Mediation is uniquely qualified to facilitate your next mediation. He has developed a reputation for understanding the legal issues involved as well as the emotional needs facing parties involved in various civil disputes. He is exceptionally skilled at facilitating communications in emotionally charged situations. Please contact us today to learn more about our personal injury mediation services.

Understanding the Mediation Process

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Pursuing a personal injury lawsuit can be stressful, costly, and time-consuming. Fortunately, there are alternatives to taking your dispute to court. Using mediation, two or more parties can resolve their dispute informally with the assistance of a neutral third party, called the mediator, and avoid litigation completely.

While you still want an attorney by your side to represent and protect your rights, you also need to find the right third party to mediate your case. The best mediators have training in conflict resolution and understand the underlying legal issues involved. Here is what you need to know about the mediation process for personal injury cases.

Understanding the Mediation Process

Because mediation is unfamiliar to many people, it can be a bit confusing and stressful. But when you know what to expect, this can ease your mind and confirm you’ve made the right choice. Here are some of the most common steps in the mediation process.

  1. Introductory Remarks

As soon as everyone is present, the mediator will make introductions and give some introductory remarks. This will include an outline of how the mediation process works and what you should expect. The mediator will also tell about their role in the process, specifically what they will and will not do to facilitate an agreement.

  1. Opening Statements

After the introductory remarks, each party will have an opportunity to make an uninterrupted opening statement. This allows them to give their side of the story.

  1. Joint Discussions

Following opening statements, the mediator may ask each party some open-ended questions to build a dialogue and get more information to help bring the matter toward a resolution. Each party should remain calm and take turns answering the questions.

  1. Private Discussions

Once the two parties have met together, it’s time to move to separate rooms. The mediator will spend some more time with each party privately asking questions and finding out their positions on settlement.

  1. Negotiation

When the mediator knows what each side is willing to offer, negotiations can begin. Often, the mediator will go back and forth between the two parties many times with offers and counteroffers. At the same time, there will be discussions about the pros and cons of settlement and other concessions that may bring the parties closer to a consensus.

  1. Settlement

This is the final step in the process. If the parties are able to settle, everything is put in writing and submitted to the court for approval. If you cannot reach an agreement, the case can go to trial, or negotiations can continue at a later date.

Coming Prepared for Your Mediation

While it’s true that most disputes are settled at mediation, this magic doesn’t just happen. To achieve the best possible results, particularly ones you are most satisfied with, you need to put some time and effort into the process, even before the big day. Here are a few ways you can prepare for your upcoming mediation.

  1. Identify Your Key Interests in the Dispute

Before you show up to the mediation, sit down with your attorney to prioritize what is most important to you in a settlement. This will influence the strategy used to get the best possible deal.

  1. Be Ready to Make an Offer

Research shows that the party making the first offer in a negotiation is often the most satisfied. This is because the first offer sets the stage and helps define the range for what is considered “reasonable.”

  1. Reality Check Your Expectations

Ask your attorney what your odds are if you take your case to court. Unless they’re 100%, there is a strong case for settling at mediation.

  1. Estimate the Cost of Litigation

One of the incentives to settle at mediation is that you save a ton of money by not going forward with a courtroom battle. Make sure you ask for an estimate for litigation costs, so you fully understand your savings.

  1. Don’t Be Afraid to Speak Your Mind

There’s nothing wrong with having your attorney speak for you if you feel intimidated by the process. But anything you say to the mediator is confidential, so there’s nothing wrong with speaking your mind, so you ensure your voice gets heard.

Contact Bailey Mediation to Schedule Your Mediation Now

When you have a personal injury matter you need to resolve, you don’t have to resort to costly and time-consuming litigation. Whether you are choosing mediation or must go through it as part of the pre-trial process, we are confident you’ll find this strategy beneficial.

Tim Bailey has over 30 years of experience as a successful personal injury lawyer in several states. He uses his background, knowledge of the law, and superior communication skills to help parties find common ground and reach satisfactory settlements. For cases in West Virginia, contact our office today to schedule a free initial consultation.