In many federal courts, the presiding judge will order the parties to mediate a case prior to trial. Some federal courts will require a magistrate settlement conference and then a mediation if that fails. Some state courts also mandate mediation in many cases. Because of mandatory mediations in some jurisdictions, deciding whether to take a case to mediation may have already been made for you.
But what about those cases where you have a choice as to whether to seek mediation prior to trial. In these scenarios, a negotiation strategy is needed between you and your lawyers to determine your best pre-trial options.
What is mediation? Mediation is an informal intervention process that attempts to resolve a dispute between two or more parties. In a practical sense, what happens in the mediation of a car accident case is that you and your lawyer will meet with a private mediator, along with the Defendant, the Defendant’s lawyer, and the defendant’s insurance adjuster.
Many times, the mediator will begin with all parties in the same room for an opening statement. Other times, the mediator will go ahead and start by putting everyone with the Plaintiff in one conference room, and everyone associated with the Defendant will be in another room. The mediator will then go back and forth between the rooms trying to find middle ground on all contested issues.
Remember that it’s the mediator’s job to find a number both parties can live with – he’s not there to judge the merits of the case. Is it a good idea to mediate? Usually, yes, but you need to make sure that the case is fully prepared and a trial date is set. This will ensure that the Defendant brings their top dollar to settle the case.
If there is an opening statement, should you speak? If you are able to very clearly articulate how this accident has impacted your life, absolutely! It can really move the needle with an outstanding appearance.
The main point prior to a mediation is to make sure that the Defendant has the main decision-maker (ie, the insurance adjuster) present and in-person at the mediation. This is very important. You have your main decision maker present. It’s imperative that the Defendant have the person with authority to write the check there in person and not in attendance by phone.
For these reasons, it is imperative to hire a veteran litigator and experienced trial lawyer who has been involved in mediations. Steve Harrelson, a veteran Little Rock personal injury lawyer, has successfully settled cases in mediation for years.
Thanks to Steve Harrelson and our friends and co-contributors from Harrelson Law Firm, P.A. for their added insight into the mediation process.