At some point in your personal injury case, you might be asked if you want to participate in mediation.
Mediation is not to be confused with a deposition (where you are sworn in under oath and asked questions by opposing counsel) or an arbitration (where a binding decision by an arbitrator is reached). Mediation for the most part is entirely voluntarily (the Court can order your participation), and it’s entirely up to you and the insurance company whether you want to reach a settlement.
Mediation is a process where the parties gather together in person at a neutral location and a neutral third party (the mediator) attempts to get the case settled. The parties will for the most part be in separate rooms, and the mediator will go back and forth and share settlement offers as well his thoughts on the case.
Most likely, the mediation session will be after the discovery period has concluded and you have already sat for your deposition. The reason is simple. A mediation session is much more likely to be effective after both sides have been able to size up the case. A mediation session would not be as likely to succeed if the insurance company had not yet seen the plaintiff testify at a deposition to know what she will say at trial and what kind of witness she will appear to a jury.
Similarly, your counsel will want the opportunity to evaluate what kind of witness the defendant will be, as well as knowing what kind of admissions he might make at trial.
In a big damages case, there will also need to be a lot more witnesses testify prior to mediation. For example, in a surgery case, the surgeon will probably testify by video deposition prior to the mediation.
You will not be asked questions about your case and your injuries at mediation. Your attorney will be by your side and will do most, if not all, of the talking. You will of course need to be there because you will be the one who ultimately has the power to accept or reject an offer.
The session will start out with all parties convened in the same room. Each side will make a presentation to the other in front of the mediator. The parties will then separate into rooms and exchange offers. Eventually the day will end with the parties reaching an agreement or deciding to continue the litigation.
It is also possible the parties will depart without a settlement but the mediator will feel it is close enough to possibly settle in the next few weeks. In those scenarios, the mediator will present a “mediator’s number” to the sides after the mediation. The parties will then blindly accept or reject the number. If they both accept, a settlement is reached.
By Peter Bricks, an Atlanta personal injury attorney.