How Mediation Works
Posted on Sunday, January 1st, 2023 at 8:57 am
In personal injury cases, the parties can voluntarily attend mediation in an attempt to resolve an insurance claim or lawsuit. Sometimes, a judge may order the parties to go to mediation before they can go to trial. Mediation is popular because of the following benefits:
- Less expensive than a trial
- Faster than trial
If your lawsuit goes to mediation, you and your lawyer will try to resolve the matter at mediation and enter a settlement agreement.
What Is Mediation in a Lawsuit?
Mediation is a form of alternative dispute resolution used to resolve legal disputes with the guidance of a mediator. Mediation is popular because of its success rate and low cost compared to the cost of the trial. Typically, mediation will occur during the discovery phase of a lawsuit. “Discovery” is that part of a lawsuit where the opposing parties obtain and exchange information to build their cases.
A neutral third party will facilitate the mediation process by guiding the conversations and presenting alternative options for settlement. The goal of mediation is to reach an agreement that benefits all parties.
What Happens During Mediation?
Mediation will begin with introductions by the mediator and the parties so that everyone knows what role the other people attending will play. After introductions, everyone will be required to sign a confidentiality agreement. Communications during mediation are confidential so that parties can discuss the case and settlement options transparently without the concern of backlash. This means nothing said during mediation can be disclosed at trial except under certain circumstances. Those circumstances include:
- Threats of harm
- Admission of crimes
- Admission of abuse
After everyone has signed the confidentiality agreement, each party’s attorney will make their opening statements. During opening statements, the parties will present their cases and any evidence they intend to use at trial to support their claims. Sometimes opening statements will only last a few minutes, but depending on the case’s complexity, opening statements could last over an hour.
The opening statements help each party and the mediator understand the elements of the case and what will be heard or presented as evidence during a trial. The plaintiff can also use opening statements to explain their demand and why it’s in the defense’s best interest to accept it.
After opening statements, the mediator will likely place the parties in separate rooms. The rest of the mediation will be conducted through the mediator. The mediator will go back and forth between the parties to discuss the case, offer suggestions, and guide settlement conversations.
Mediators may ask questions to help the parties better understand their case’s weaknesses and strengths and determine whether settling is in the parties’ best interest. However, the mediator does not have the authority to order legally binding decisions in personal injury cases.
What Happens if Mediation Is Successful?
The parties must enter a written settlement agreement before any agreements made during mediation become legally binding. Once the settlement agreement is signed, it will be filed with the court, and the lawsuit will be dismissed.
A signed settlement agreement is a legally enforceable contract. Therefore, violating a settlement agreement will result in the original dispute reopening and can lead to additional consequences for breach of contract.
Under certain circumstances, a settlement agreement will be found unenforceable. If the agreement was entered into and any of the following apply, it will be unenforceable:
- Mental incapacity of a party
- Undue influence was applied to get the agreement signed
- Duress was applied to a party
- Fraudulent misrepresentation of a material fact by a party
When a contract is found to be unenforceable, the lawsuit will either not be dismissed by the court or, if it was already dismissed, the lawsuit would be refiled.
What Happens if Mediation Is Unsuccessful?
When mediation is not successful, your lawyer should continue preparing your case for trial. However, an unsuccessful mediation does not mean a settlement agreement cannot be negotiated before trial. Settlement can occur right up until the judge or jury issues a legally binding judgment.
Mediation is the best option for settling your dispute before trial after independent negotiations have failed, so you should take the process very seriously.
Contact a Personal Injury Attorney from Lawrence & Associates Accident and Injury Lawyers, LLC
Mediation is well-liked by plaintiff and defense attorneys alike because it is not legally binding but has a good success rate for settling legal disputes. The Cincinnati personal injury attorneys of Lawrence & Associates Accident and Injury Lawyers, LLC are experienced attorneys who understand the mediation process and could work to increase your chances of a successful mediation.
If mediation is unsuccessful, our attorneys will fight for you to receive the compensation you deserve during the trial. Contact us today to discuss your legal option by calling us at (513) 351-5997 or contacting us online.