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Recently, we posted an overview of alternative dispute resolution (ADR) in auto accident personal injury cases, highlighting the differences between mediation and arbitration. This legal blog post takes a closer look at the use of mediation to settle car crash crash claims in Louisiana.
Mediation is the ADR technique most commonly used to resolve auto accident personal injury cases. Mediation is an informal negotiation process that is used to resolve disputes, which is facilitated by the help of an independent third party called a mediator. In mediation, the parties (the car accident injury victim, responsible car insurance company, and negligent driver who caused the collision) meet with a neutral mediator in an attempt to mutually agree to settle their dispute. The mediator has no decision-making authority. Instead he or she is there to help the parties clarify issues, explore settlement options, and evaluate how to advance each side’s particular interests. The purpose of mediation is to help the opposing parties communicate and understand each other’s positions with the hope of reaching an agreement that satisfies both sides. In mediation there is no judge, jury, or arbitrator with the power to decide the matter. Instead, the parties involved either come to the agreement on the outcome of the case with the help of the mediator, or fail to resolve the matter and return the case to court.
Mediation is usually a voluntary process, but in some instances a court may order the parties to mediate. Although a court can force parties to attend mediation sessions, it cannot force them to come to a settlement agreement. Since the mediation process only results in a binding agreement when all parties agree to it, there are very few drawbacks to at least attempting mediation in car accident personal injury cases. Usually the accident victim’s personal injury lawyer and the car insurance company’s defense lawyer will first attempt to negotiate a settlement on their own, but they will often agree to mediate the case, even where a judge does not order it, in an attempt to save the time and money involved with going to trial. If the injury victim and auto insurance company are still unable to come an agreement after mediation, the alternative option of going to trial to decide the matter is still available. The following are 5 key aspects of the mediation process you should understand if you plan to hire a personal injury lawyer to handle your own car accident case:
The mediator is a respected neutral attorney that has usually has specific training on the mediation process, how to assist parties in reaching agreements, and how to bring disputes to settlement. The mediator is not a judge and is not there to give legal advice on the case. They cannot make decisions for the parties or give orders related to the proposed agreement. Their job is simply to help facilitate the agreement and to get both sides to figure a solution that has everyone’s needs met and works for both parties.
Mediators are usually experienced lawyers or retired judges credible to the plaintiffs’ personal injury attorneys and defense lawyers alike. Many are full-time mediators that no longer represent clients as active lawyers, while others only work part time as mediators. Whether or not they still actively represent clients, mediators usually have expertise in the area of law that they are mediating. For example, many mediators in auto accident personal injury cases are attorneys that have previously practiced, or still currently practice in that area of law. If a judge orders mediation, the parties typically have the opportunity to mutually agree on the person to be appointed as the mediator. You and the defendants must agree upon the mediator though, and if you cannot, the court may appoint one. The mediator’s job is to primarily act as a buffer between you and the car insurance company during negotiations. The mediator will not take sides, as the mediator’s job is not to determine a winner or loser, but rather to merely facilitate communication between the sides.
Usually, the accident injury victim and the car insurance representative, as well as their attorneys, will be present at the mediation. Anyone else that you feel you need to consult with before agreeing to settle your case, such as your spouse, parents, or other advisors, should also be present. Although the opposing attorney and an insurance adjuster will attend the mediation, the defendant driver will probably not be present, depending on the situation. In cases where the opposing insurance company’s representative does not attend, they should be available by telephone or videoconference. In some cases, a representative from an interested health or workers compensation insurance company may attend the mediation because they also have an interest in the outcome of the case.
Usually mediations take place in a conference room at the mediator’s office, or a similar neutral location, a place where both sides can get together and present their case comfortably. The mediator will begin with an introduction where he or she will explain the mediation process and any other relevant rules to all parties and their attorneys at once. Lawyers for each side are then given an opportunity to present their case, including any evidence and exhibits they may wish to share. After this, the parties will separate into different rooms. At this point, the mediator usually goes back and forth between the parties to try and negotiate a settlement agreement. The mediator may point out potential weaknesses in each side’s case or highlight other relevant issues to consider. It is important that the parties understand the weaknesses in their cases and the risks of going to trial. The mediator will spend time talking to each side about the case including information about your injuries and damages.
It is also important to understand that at this point in the process, the parties are usually trying to negotiate the amount of money to be paid by one party to the other. That is to say, if your case has reached mediation, the insurance company has probably already accepted the fact that it will have to pay monetary damages to you, and they are essentially negotiating the amount that is to be paid. Each party can make settlement offers, and the parties can explain to the mediator things they feel may help them achieve settlement. If you and the insurance company are able to reach an agreement in mediation, you will sign a written settlement contract. If not, your case will continue in court as it would have otherwise.
It is good to know that everything said in mediation is confidential. All oral and written communications and records may not be used as evidence in any future judicial proceeding. That is to say, if you do not end up agreeing on a settlement, and your case instead goes back to court, things that you said and did in the mediation process cannot later be used against you. This is because the law it set up to encourage people to settle matters outside of the judicial system if possible. For this reason, the law protects information given in the mediation, so both parties can feel free to express any and all positions that can help effectuate settlement without fear of recourse in later proceedings. Therefore you or your attorney should be ready to talk about whatever matters you feel will help move the case towards settlement.
Both parties should be prepared for the process to take a long time. Mediation can take anywhere from a few hours to a full day, and in rare exceptions, several days. Getting both sides of a dispute to voluntarily agree to a solution that works for all the parties involved is not usually a quick or easy task. It can take considerable time. Both sides should be prepared to be patient with the mediation process and allow for the negotiation to run its course naturally.
If you were injured in an auto accident, you will have the option to tell the mediator about the pain, disability, and other physical problems you have suffered. You may also talk about your work, ,family, and recreational situations, and how they have been affected by the injuries from the accident. If there is any other relevant information that will affect the settlement, you will be allowed to talk about that as well. However, if you prefer, you may also elect to say nothing and instead instruct your personal injury attorney to handle all of the talking for you. (Most clients do that.)
Most importantly, you should be prepared to compromise. You should arrive at mediation with an open mind and a willingness to work toward a mutually agreeable solution. If your goal is to reach a settlement, you must be ready to compromise on what you expect to receive. It is important to remember, though, that a settlement is not necessarily a victory or a defeat. You may not receive as much as you would if you win at trial, but you also won’t risk being defeated at trial and getting nothing. A reasonable settlement amount will likely be somewhere in between your “best day at trial grand slam victory” and “worst day at trial domesday defeat” scenarios. At mediation, you and the other parties can control the outcome, as opposed to trial where the judge and jury will dictate the result. Settlement is not a win or loss, but an alternate resolution to trial that has many advantages over trial litigation.
Before mediation, you and your attorney should discuss what level of compromise you are comfortable considering. Be prepared to consider options beyond your original “bottom line” position. Expect offers from the opposing side that seem far from what you expect, especially in the beginning of the mediation. It is important to be patient and let the negotiation process unfold naturally. It most cases, you can eventually reach an amount that works for you and the insurance company, as long as you remain open-minded, level-headed, and patient.
One of the primary advantages of mediation is your ability to recover money for car accident personal injuries, lost wages, and other damages much sooner than you would by trial or appeal judgment. If your case is settled in mediation, you should receive your money in a matter of weeks (sometimes only days). If your case is not settled at mediation, you could wait years before getting paid, assuming that you win at all. In addition to receiving your money now, settlement allows for the stress of the lawsuit to be over that much sooner, and both sides to be able to move on with their lives. Mediation settlement is a perfect example of the wisdom inherent to the classic axiom, “A bird in the hand is worth two in the bush.”
Moreover, a mediation settlement can often result in more money actually going into your pocket than a trial verdict would, even if that trial would result in a marginally higher amount being awarded because of all the delays, court costs, and expert witness fees associated with a personal injury trial. That is to say, even if the amount awarded at trial was bigger than the amount paid at mediation, the net total you actually receive could be lower if you try your case to a judge and jury rather than settle at mediation. Bringing a case to trial can be expensive because of costs for depositions transcripts, medical expert witness testimony, exhibit reproduction, and subpoena filing fees that are needed to in order to try a case in court. Court costs and attorney’s fees can also add up over extended litigation, which eventually comes out of the net amount you receive. Additionally, health or workers compensation insurers who have made payment for medical bills or other expenses that are entitled to reimbursement will often reduce the amount of their reimbursement claim when cases are settled at mediation. If, on the other hand, a case is taken to trial, those amounts often must be paid in full. For these reasons, even if you could be awarded more at trial than is being offered at mediation, it is very likely you might both end up with more money and receive the money much sooner if you settle at mediation. These are important factors to keep in mind when deciding whether to accept a settlement offer at mediation.
That being said, one of the reasons why the attendance of the parties in mediation is required is because an attorney cannot enter into a settlement agreement without the authorization of his client. No matter what your lawyer’s recommendation might be, it must be your decision whether or not to accept any settlement offers. For this reason, it is important you understand all of the risks and benefits of accepting any settlement offer made by the car insurance company and its insured negligent driver.
If you and the defendants settle your case at mediation, the mediator will prepare a settlement agreement for all parties to sign. The executed written agreement will legally resolve the dispute, and that agreement will create an enforceable contract. The settlement agreement could include a confidentiality agreement preventing you from disclosing the terms of your settlement to anyone. It is important to note, even posting any information about a settlement agreement on social media sites would be a breach of confidentiality and could void the settlement agreement or result in penalties. Any public or private conveyance of settlement information would violate the agreement.
If the mediation results in an impasse, meaning you fail to reach a settlement agreement, your lawsuit will continue as if the mediation never occurred. However, this is not the only chance for settlement. All sides can revisit the possibility of settlement when trial approaches or at any other time. Sometimes parties will even agree to attempt mediation a second time. However, you should not expect your case will settle after mediation. That outcome is extremely rare. Mediation is usually the best chance for a settlement to happen.
There are numerous advantages to mediation. As a car accident personal injury plaintiff, there is little harm in attempting mediation if you believe that an agreement between you, the responsible car insurance company, and its negligent driver could be possible. Assuming mediation results in a settlement agreement, the following are some of the advantages to be aware of:
It is important to understand the mediation process and have realistic expectations about what the results of mediation will be. Although you may have to compromise on the amount of money you receive, if you resolve your case by through mediation, you will receive your money more quickly, avoid a drawn out legal battle and the risk of a worse outcome at trial, and save costs associated with prolonged litigation. You may even come out with more money at the end of the day anyway.
If you would like to know more about mediating your auto accident personal injury case, contact one of our personal injury lawyers in Hammond or Ponchatoula, Louisiana. Our attorneys help people like you every day, and we welcome your call.
Parker Layrisson Law Firm
