Based on Texas law, the vast majority of personal injury cases are required to enter into a mediation before proceeding to trial. Since this is a necessary step to getting you the compensation you deserve for your injuries, it’s important that everyone understand what the personal injury mediation process entails and what it means to your case because knowing that will allow you to make better decisions.
In all cases, your lawyer will meet with you face-to-face to explain what to expect, but, put simply, mediation is the name given to a formal settlement conference, the purpose of which is to present both sides with an optimal opportunity to settle their lawsuit before trial. While a great many plaintiffs tend to be very nervous about the process, they shouldn’t be; there are no winners or losers. The only thing that is decided at a mediation is whether the case settles; it’s not like a deposition and there are no pointed questions.
Who Attends a Personal Injury Mediation?
At any personal injury mediation, the attendees will almost always be you and your lawyer, the defendant’s lawyer, a representative from the defendant’s insurance company, usually an adjuster, and the mediator. The defendant usually won’t be there, because in most cases, the defendant has no say with regard to settlement, the insurance company does, and the whole point of a mediation is to bring those with final authority together and that is you and the other party’s insurance company.
The mediator is usually a lawyer with no skin in the game; they have neither a connection to anyone involved in the lawsuit nor an interest in the case outcome. Many mediators do that as their job full time and no longer handle cases, and even when they do handle cases, just not yours. The choice of mediator must be agreed upon by both attorneys. In the rare instance when agreement isn’t possible, the court will appoint one both sides don’t want.
What Happens During Mediation?
The mediation will usually be held in the mediator’s office and will begin with what is referred to as the “joint session,” at which the mediator will explain the process to everyone involved. Among the key points made in that discussion will be that everything said is confidential; that the mediator is impartial and will not try to influence the outcome; and there will be an admonition that the key to settlement lies in the ability of both parties to compromise. The parties will then make offers and discuss settlement generally.
After the joint session, the parties are then sequestered, meaning they are placed in separate rooms. They will remain that way for the rest of the mediation, with the mediator going back and forth from one side to the other, relaying settlement offers and other information between the parties. This can last a long time. Most of the time people spend in mediation is essentially spent waiting. Insurance companies almost always take longer to come up with an offer, partly because adjusters have to clear everything with supervisors on an ongoing basis.
When a personal injury mediation results in a successful settlement, the mediator will then prepare a settlement agreement for all parties to sign. If that happens, your case is over and you will soon receive compensation.
On the other hand, if the mediation results in an impasse, everything about your lawsuit will just continue as if the mediation had never occurred. That does not mean there can’t be a settlement; the closer the parties get to trial, the more likely both parties are to settle. However, the best chance to settle is usually at mediation.