Your Guide to Personal Injury Mediations

In a mediation, the parties involved in a civil case use the services of a third party to work toward a resolution acceptable to both sides. Through mediation, the plaintiff and defendant can reach, and enforce, a settlement without having to continue with the time and expenses associated with litigating a case.

Mediation is, generally, voluntary, though some jurisdictions enforce mandatory mediation programs run through the court system. The beauty of mediation lies in the freedom it gives plaintiffs and defendants to work out a solution outside the courtroom. However, while mediation differs from trial and arbitration in significant ways that this article will explain, it still requires legal perspective, and, as in court, a skilled attorney will help to ensure that you get the results you need.

Need to Know

• Mediation is confidential, typically voluntary, and, when practiced well, can help the parties in a case save time and money.
• Opting for mediation won’t limit your ability to pursue your case in court: if the parties involved are unable to come to an effective compromise, they may still choose to litigate.
• Although mediation does not strictly require you to retain a lawyer, a good attorney is irreplaceable at every stage of the mediation process.

In This Article

• How Mediation Differs from Other ADR Methods
• Deciding On Your Mediator
• Preparing For Mediation
• Who is Present at Mediation?
• How a Mediation Session Works
• A Note on Summary Judgments
• Staying Confident in Mediations

How Mediation Differs from Other ADR Methods

According to some estimates, 95% of pending lawsuits settle out of court. Like arbitration, mediation is a means of alternative dispute resolution (ADR)—that is, a way for the parties to settle their dispute without litigation, ideally saving time, money, and energy.

However, an arbitration result is legally binding, with the parties typically forfeiting the right to appeal in almost all instances. The arbitrator acts much as a judge does in court, and the litigants—plaintiff and defendant—are expected to abide by the arbitrator’s final decision. Mediation is a different process in which the mediator, accounting for the needs of both parties, strives to move the litigants toward a settlement they can agree on. No proposal by the mediator can be legally enforced until both parties consent to the arrangement and sign a contract.

A case will typically go to mediation if the litigants believe that the presence of a neutral third party may allow for negotiations to flow more smoothly. This does not necessarily mean that the case is not fiercely contested.  If you are considering the possibility of mediation, it is important to be aware that cases handled in mediation may prove just as adversarial and challenging as those that go to arbitration or trial, particularly where the stakes of successful resolution are high.

Deciding on Your Mediator

A wide variety of professionals can become mediators once they have formal training in the subject. Many mediators are former legal professionals, such as retired judges and attorneys with experience in any number of legal fields. However, they are not there to offer you legal advice in their capacity as mediators. While it is typically not a strict requirement for either party in a mediation to retain a lawyer, you’re far less likely to get the results you want if you attempt to go in without your own legal counsel.

In fact, having an experienced attorney on your side is important from the moment seeking out a mediator becomes necessary. In a voluntary mediation, you will have input into the selection of your mediator, and—as when you retain a lawyer—you will want someone familiar with your type of case. Typically, the attorneys of both parties will decide on a mediator between them, and an attorney experienced with mediation will help to ensure that your case is in the right hands.

No matter who is selected, it is important to bear in mind that the mediator is not acting as a judge. The task of the mediator is not to deliver a certain result, but to move you and your opponent toward an effective compromise.

Preparing for Mediation

Typically, before mediation takes place, each party will put together a mediation submission. This amounts to an outline of your case which details the strengths of your position, the damages you are claiming, the opinions of any experts or lay witnesses that support your case, and any testimony or evidence (such as medical records) that you think the mediator should consider.  A party to a mediation may also want to highlight some parts of their adversary’s cases, either pointing out the weaknesses of their opponent or perhaps explaining some of the other side’s points.  This submission should be provided to the mediator before the mediation, giving the mediator time to digest the information provided by both parties.

A good attorney will craft your mediation submission carefully, weighing what information should be included and how it should be presented. He or she will ensure that you go to mediation with just as much preparation as if you were going to court, helping you to understand what you may expect in terms of a settlement and illuminating any weaknesses in your case well in advance. As in a trial, there is a certain “cadence” to an effective mediation, and an experienced attorney will not allow you to go in blind.

Who is Present at Mediation?

The in-person makeup of a mediation session varies. Some mediations include the plaintiff, the defendant, and any legal representation they may have. Others may amount to a meeting between the litigants’ respective attorneys and the mediator. Some mediations may even include witness testimony brought in by attorneys. Your attorney will advise you on how mediation should look in your individual case.

Whether or not you appear in-person at mediation is a tactical decision, one that an experienced attorney is best qualified to make. The right decision will depend on the circumstances of your case. In a particularly emotional case, for example, you may be best served by having your attorney function as your representative. You will then have the freedom of being able to discuss—and react to—the session in private before planning the next session.

In other cases, your attorney may find it helpful to have you appear in person. For example, in one mediation that Block O’Toole & Murphy handled, we had reason to believe that our client’s testimony would prove highly impactful if the matter came to trial. During a mediation session, we staged what was effectively a mock trial for the benefit of the mediator, the defense attorneys, and the insurance company representatives, allowing our client to offer the testimony he intended to give in court. This helped the defense to understand what they would be up against if they did not mediate the situation effectively and proved instrumental in achieving our client’s desired result.

In this decision, as at every stage of the process, it is important to have an attorney that you can trust. Whether your attorney feels that you should appear at mediation or not, you should understand that the decision is not a judgment of your character. Rather, it will reflect the unique circumstances of your case and the ideal approach to its defense.

How a Mediation Session Works

Despite not being legally binding in itself, a mediation session functions, in some ways, like a mini-trial. Each side makes an opening statement and presents the case to the mediator, outlining its strengths while attacking the weaknesses of the other party.

Typically, the mediator will then meet separately with each side of the case for a discussion. Whether you are present for this discussion or informed by your attorney after the session, there are a few things you should know about the shape this conversation tends to take.

It is typical for the mediator, when talking confidentially to each party, to focus on disadvantages in their respective positions. For instance, suppose you are a construction worker who was injured when the ladder you were working on broke. The defense claims that the ladder you used was working well for thirty days prior to the incident, and that you somehow used the ladder in a way that it was not meant to be used, leading to the accident. Your mediator may tell you to consider the case the defense has against you, and the confidence of your opponents in being able to prove fault on your side, before you think about taking the case before a jury.

If this thought unnerves you, you should bear in mind that the mediator is likely informing the defense of the strengths of your position, endeavoring to make their team consider its own disadvantages in much the same way.

You should not think of this as duplicity on the part of the mediator: he or she is likely telling the truth in both cases. But successful mediation often involves alerting the parties involved to the risks of their positions in order to move them towards a more central position in which the case can be resolved.

A Note on Summary Judgments

If you are granted summary judgment—that is, a decision by the court in advance that you are legally entitled to a favorable ruling—in your case, you should know that such a decision made in New York State triggers an interest of 9% per annum. In mediation, this fact can work in your favor by encouraging the defendants not to embark on the lengthy process of getting the matter to court as interest continues to accumulate, increasing their financial losses when the trial resolves.

At Block O’Toole & Murphy, we emphasize this fact when we handle mediations under such circumstances. Our attorneys prepare charts showing how the interest will grow over time and make the precise math of potential case scenarios clear to the defense.

This was especially helpful to us in a certain case that came with built-in time delays, including several changes of attorneys before the case made it to us. Four years of interest had accumulated, and by the time the matter went to trial, the defense would have accumulated two more years’ worth. By demonstrating the devastating mathematics of this scenario to the defense, we instilled the urgency we needed to get the best result for our client.

Staying Confident in Mediations

It is important not to be intimidated by what you hear in mediation. Keep in mind that, while mediation carries the advantage of speed, most mediations do not resolve in one session—most cases take anywhere between 2 and 5 sessions to either reach a resolution or determine to go to trial.

Therefore, you should neither refuse to show willingness to compromise or make the opposite mistake of caving too easily. Communicating clearly with your attorney throughout the mediation process will help you to make good decisions, understand the language being used, and, ideally, bring your case to a satisfying conclusion.

The attorneys at Block O’Toole & Murphy take mediations as seriously as trial and will put their resources to your disposal whether your case is handled in mediation or in court. Contact the experienced attorneys at Block O’Toole & Murphy to receive a free legal consultation by calling 212-736-5300, or by filling out our online contact form.