5 Benefits of Mediation in Personal Injury Cases

An emotional courtroom showdown is the signature event in the TV/movie trial process. The out-of-court settlement, a process that usually includes mediation, is the signature event in the real-life trial process. Fewer than 10 percent of civil cases go to trial. A few personal injury cases settle early in the process, sometimes even before a lawsuit is officially filed. However, formal settlement negotiations resolve most cases. The mediation process works. Professional mediators resolve almost 90 percent of the cases they handle.

Mediation more closely resembles a mini trial than settlement negotiations. The lawyers for each side make a brief presentation (opening statement) to the mediator. Next, the two sides retire to separate rooms. Then, the mediator conveys settlement offers and counteroffers back and forth between them, until an agreement is reached.

The duty to negotiate in good faith may be the main reason mediation is so successful. During informal negotiations, insurance companies often make take-it-or-leave-it “offers” that go nowhere. During mediation, the insurance company has a legal duty to make reasonable offers and counteroffers. It also has a duty to compromise when necessary. So, during mediation, a well-prepared avocat is well-positioned to obtain maximum compensation for your serious injuries.

Guitarist Jimi Henrix died suddenly in 1970. Today, over fifty years later, his estate is still tied up in court.

So, when the judge’s gavel falls after a trial, that act is not the end of the case, but could be  the beginning of a long appeals process.

In contrast, a mediation-related resolution is a final resolution. Insurance companies usually cannot challenge settlement agreements in court. So, instead of going to the appeals court, and another one, and another one, the insurance company writes a check.

A mediator acts like a judge, as mentioned, but their role is to be a facilitator.

This control is especially important in consent decree settlements. Frequently, judgements order defendants to make changes. For example, in a dangerous drug case, the judge may order the drugmaker to amend the warning label. The voluntary compliance rate is much higher when the parties have control over the outcome.

Pre- and post-trial processes can be time consuming. Jurisdictions that had six or eight-month backlogs before the pandemic (a common occurrence) now have sixteen or eighteen-month backlogs.

Mediation puts a personal injury case in the express lane.

Public trials are important in criminal cases. Everything needs to be on the record and in full public view. But in civil cases, not so much.

Mediation is a record-less proceeding that’s not technically open to members of the public. Furthermore, the rules of professional conduct require lawyers and mediators to keep these matters confidential. In other words, what’s said in the room stays in the room, for the most part.

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