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Feb 02

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Mediation In Injury Cases: It Has Its Place

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While many Idaho injury claims can be fairly settled without a lawsuit being brought, sometimes a case needs to be filed. After the lawsuit is filed the litigation process–called discovery–leads to the exchange of information between the parties.   Often there is a chance to have another serious settlement negotiation to resolve the case without an actual trial.  A type of negotiation that has been particularly popular for the past two decades is called mediation.  In a mediation, an impartial third party is hired to help the sides come to an agreement. Mediators have generally been trained in dispute resolution methods and have substantial legal experience.  It is a way to try and resolve your lawsuit around a conference table rather than in a court room.

What You Can Expect At Your Mediation

Mediation is usually conducted through an in-person discussion with all parties, including you, the insurance company and/or the defendant, as well as the lawyers for all parties.  Usually it is in the mediator’s offices.  Generally speaking, a mediator is a retired judge, a lawyer or other neutral person who has also been trained to mediate disputes. Frequently, he or she has a special certification from the courts. However, unlike a judge, a mediator must be paid.  Usually, you and the defendant will split this cost evenly. Mediation can be chosen or ordered by the court at any time during your case, although it is more likely after discovery has been conducted.

At a mediation conference, both sides sit down and present their cases to the mediator informally.  Some mediators like to sit with everyone in the same room initially and then split them apart.  Some prefer the parties stay in separate rooms for the whole process.  There is no jury.  The mediator will then discuss each party’s claims, either in the same room or in private conferences, if necessary.    In these conferences, the mediator might ask questions and raise issues to help the parties find a compromise that they can agree to.  Mediators use various techniques to help the parties have a more complete conversation about their views of the dispute.  The mediators aim is to get the parties to reach an agreement  on a settlement amount or other disputed matter.

Because the mediator is experienced in the law affecting your case, he will take into account your legal rights, the extent of your injuries and the prospects of your case in a trial.    It is really a chance for a neutral, unbiased professional to help make sure everyone see the variety of risks that exist if the case goes forward to triall.  A good lawyer will have prepared you for most of the things a mediator might say about your case and there shouldn’t be big surprises during a day of mediation.  Meditations can be long processes as you discuss the wide variety of facts in a case, the legal issues, the risks and the mediator comes to know the dispute and the parties’ positions.

It is important to understand a mediator CANNOT force you to resolve your case.    A good mediator wants to make sure that the parties who do not resolve a case at a mediation understand the risks and costs they face to take the case through trial.

Sometimes a mediation is not successful on the day set aside for the process.  Thus, after the initial mediation conference, you may have a follow-up conference or discuss the matter by telephone. It is important to realize that coming to an agreement in this way can be slow. If you reach an agreement at mediation, it is not binding unless you and the defendant sign papers and take other steps to formalize it. If you do not come to an agreement, you are free to try again or continue toward trial.   The mediators only real goal is to get the parties to come to an agreement that will end the pending lawsuit.

Something to Watch Out For

In mediation, you are in a way previewing your case for the other side, just as they are previewing theirs for you. That means it is important to be careful about what you say and to present yourself in a professional manner, just as you would if you were going to trial.  A good rule of thumb is to behave as if the room is full of a diverse group of people from your area, some of whom may not be sympathetic to you.    We will will prepare you for mediation, just as we would for trial and depositions.

Mediation is not needed in every case, and in our view is sometimes overused, but it can get a case resolved. And, many insurance companies have come to like mediation because it gets all the parties, all the lawyers and the insurance carrier focused on that case for that day.

Permanent link to this article: http://holzeredwardsinjurylawyers.com/2017/02/mediation-in-injury-cases-it-has-its-place/

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