What is mediation?
Many of the bicycle, pedestrian, motorcycle, car accident and Uber accident cases we handle at Sally Morin Law go through a process called Mediation. Mediation is an opportunity for the parties to get together to talk settlement, but with the help of a neutral third-party (the mediator) who doesn’t have a “stake” in the case. Mediations are when the party’s get together to try and resolve the case without having to go through further litigation or to trial.
Mediation is not like a trial
Unlike a trial, no judgment or decision is rendered by a judge or jury at mediation. The mediator also does not render a decision or enter a judgment. No live witness testimony is presented and the parties do not need to take the stand. The parties just talk, hash over the details of their case, get the mediator’s input on the case as a whole and get real – all in an effort to settle the case.
The role of the Mediator
The mediator has no interest in the outcome of the case one way or the other. However, the mediator, who typically has many years of experience as a personal injury trial lawyer, will give his or her opinion about the strengths and weaknesses of each side’s case. The mediator will be skilled at advising the parties and their attorneys as to the likelihood of success or failure of the case should it proceed all the way to try trial. At Sally Morin Law, we typically use mediators who have had many years of experience trying cases as a personal injury attorney. It is even better if we can choose an attorney who has experience in the particular case type being presented (like bicycle accidents, pedestrian accidents, motorcycle accidents, car accident case and Uber accident case.
Mediation is like Vegas
What happens at mediation, stays at mediation. Pretty much everything that happens there is considered confidential, and cannot be disclosed at trial or to a jury. Mediators work under the strictest confidence, meaning that if you give them information about your case that you don’t want them to disclose to the other side, they have to abide by that wish. The reason for this is that it allows the parties to give full disclosure to the mediator without the fear that he or she will share all aspects and intricacies of their case with the other side. This helps facilitate a genuine evaluation and settlement of the case. One thing that actually may not “stay” in Vegas (um, or at the mediation) is the last offer and last demand conveyed during mediation. Usually, the parties will keep those offers open, unless they specifically state that once the mediation is over the offer is “off the table.” Alternatively, because parties “stretch” at mediation (they go higher or lower with their numbers than they may want to if the case went to trial) sometimes they want to retract their offer or demand. So, if an offer or demand is conveyed at mediation, the party who conveyed it does not have to stick with that number, but can start fresh with their numbers should the case go to trial.
The logistics of Mediation
The parties mutually agree on the mediator they select. The mediator is usually paid equally by both parties. (Sometimes an injury party can negotiate for the insurance carrier to pay the mediation fee as part of the settlement agreement.) Mediation takes place in an office setting (in offices or conference rooms), not in front of a judge or jury or in a courtroom. Nothing is recorded or documented by a court reporter. In fact, everything disclosed at mediation is confidential as described above. The typical mediation in a standard personal injury case can take anywhere from 4 hours to a full day. In some larger, more complex cases the mediation can go into multiple days.
There are many different ways that a mediation can be facilitated. A typical scenario is having each party (with his or her attorney) go into a separate conference room or office, while the mediator goes between those two rooms conveying information (and settlement offers and demands) back and forth between the parties. Sometimes mediators like to host a joint session at the beginning of the mediation, where the parties and their counsel all meet in the same room and each gives an introductory statement of the case. However, I have found the latter to be less and less common lately.
Mediation can be useful in personal injury cases
Mediation can be useful when the insurance adjuster doesn’t see the case the same way the defense attorney sees the case. The defense attorney evaluates the case from a legal point of view, but the adjuster is the one with the checkbook. The lawyer can only make recommendations to the adjuster, but the adjuster ultimately makes the final decision on what to pay.
Mediation can also serve as a very valuable tool when the parties are having trouble getting into the same settlement range. This is when the defense significantly undervalues the case and/or the plaintiff feels that the case is worth much more than it really is.
When we go through something terrible like a bad bike accident or suffer a serious injury, we personally believe there is NO amount of money that can make that terrible thing not have happened. This is true in some cases, BUT if you are using the legal system to compensate you for your loss, there actually is a real dollar amount that the thing (or your case, accident, injury) is worth. That’s just how the system works. A similar unrealistic opinion of case value can be held by defendants (or their insurance carriers) too. They just don’t see what the big deal is. They do not believe the case is worth much money, so they refuse to pay a reasonable amount. This is because it didn’t happen to them. Mediation is an opportunity for these unrealistic parties to get REAL, so they can resolve it without having to be dragged through more litigation.
Having a mediator (a neutral third party) is very helpful in providing the parties and their attorneys with a different angle on the case. This is very important, because if the case goes to trial, the attorneys and their clients do not make the final decision about what the case is worth, a judge or jury makes that decision.
Mediation can help with “tunnel vision”
Often, as personal injury attorneys, we see our own case through our eyes only and do not step outside of ourselves to see how the facts of the case would appear to someone not involved in the case (like a judge or juror.) Mediation gives us lawyers a no-risk chance to do this. The mediator offers a neutral perspective on the case, which can be enlightening.
Mediation can be helpful even if it doesn’t settle the case
Mediation are not always successful, but they do at a minimum help the parties understand a more realistic value of their case, the strengths and weaknesses of the case, and what they might expect if they take their case all the way to a trial. Even if the case doesn’t settle at mediation, it will often settle soon thereafter, because the mediation gets the parties poised for intelligent discussion of the merits and value of the case. If it doesn’t help get the case settled, at least the parties now know more about their case, so they can better prepare for trial.
When to NOT use Mediation
There really aren’t many downsides of mediation. I believe it is beneficial in almost every case.
Defendant refuses to negotiation at all
However, if the defense simply refuses to negotiate at all, there is no sense in trying to get them to do so at mediation.
Small personal injury cases
Also, mediation can be expensive and not make financial sense for smaller cases. Mediation costs can get up into the range of several thousands of dollars. Some mediators in San Francisco get paid $10,000 a day! However, there are some other mediation options for the smaller sized cases, like the Bar Association of San Francisco’s Early Settlement Program.
Try informal negotiations first
I have also found lately that many insurance defense firm suggest mediation right away, without even trying informal negotiations with plaintiff’s counsel. I believe this is premature and lazy. However, if the defense attorney has a difficult adjuster (who as I mentioned above is in charge of cutting the settlement check), it may be futile to try negotiating before that adjuster is forced into a mediation scenario.
The bottom line is that mediation can be very useful in almost all cases and is worth the time and money if you want to resolve your personal injury case quickly and without having to go to trial.
If you have questions about your personal injury case, please contact Sally Morin Law. We are experienced California personal injury attorneys who love our awesome clients and love what we do!