Clients often ask, what is mediation? The intention of this article is to explain the purpose, process, advantages and disadvantages of mediation in a personal injury case, accident case in Florida.
What is mediation? In short, mediation is an informal confidential, non-adversarial negotiation process that is used to resolve differences or disputes that is conducted by an impartial party, a mediator, with the purpose of bringing about a mutually acceptable settlement. The purpose of the process of mediation is to help people communicate with one another, to understand each other and if possible to reach an agreement that satisfies everyone’s needs. It is an alternative to going to trial that may save time and money. In mediation there is no third party, such as a judge or jury that will make decisions; the parties involved make the agreements. Mediation is a form of Alternative Dispute Resolution (ADR) and can be utilized in almost any sort of legal dispute including divorce, medical malpractice, dog bites, slip and fall, car crashes, truck wrecks, business disputes, etc. as long as both parties agree to discuss the issues; this article will focus on its use in Florida personal injury/accident cases.
What is a mediator? A mediator is an impartial or neutral, person who has undergone specific training in assisting conflicting parties to reach agreements and find solutions that work. Mediators will not and cannot make decisions for the conflicting parities, provide any legal advice or recommend any terms of an agreement. Their job is to help both sides of a dispute figure out how to get their needs met by reaching voluntary, creative and customized solutions that work for everyone. Mediators in Florida are professionals; they are usually attorneys or retired judges that have gone through specific conflict resolution or mediation training. In a personal injury/ accident case, the particular mediator used is agreed upon by both attorneys.
When is mediation used in a personal injury case? If negotiations between an accident victim’s personal injury attorney and the insurance company fail to reach an agreeable settlement after negotiations, a lawsuit is then filed. In short, this means that the insurance company’s highest offer has been rejected by the client and the next phase of the legal process is begun. Filing a lawsuit means that the case will be scheduled to be presented and argued in a trial in front of a judge and jury to decide what is just. Mediation is a voluntary process, however, in Florida, 99% of all personal injury cases will be ordered by the judge to undergo mediation in an attempt to settle the case before it can be tried in front of a jury. Mediation can be utilized at any time in the course of an injury case, not just after a lawsuit has been filed.
How does mediation work? Generally, mediation takes place in a conference room at the mediator’s office where both sides can get together and present their case in a safe, confidential and controlled environment. In mediation, both the injured person (plaintiff) and the party at fault for the accident (defendant), are present with their lawyer, also in the meeting is the insurance company’s adjuster. Mediation begins with an orientation session given by the mediator where the mediation process and rules are explained. Then, both sides explain their side of the case, without interruption and can present exhibits if desired. After this is completed the mediator will usually have one party stay in the mediation conference room and the other go to a private office. The mediator’s job at this point is to go back and forth from one party or room to the other and try to negotiate the case to reach a settlement. Not only will offers be made by each party towards settlement but they can also explain in detail to the mediator things that may help achieve a more favorable settlement for their side. This process is similar to “shuttle diplomacy”. If the participants are able to reach an agreement in mediation, they will sign a written settlement document which is an enforceable contract.
What are the advantages to mediation? There are many advantages to mediation.
- Mediation can help protect your privacy since it is a confidential process, unlike courtroom proceedings which are open to the public.
- If you decide to not settle your case in mediation, neither the mediator nor the participants can testify in court about what happened or was said during mediation.
- If you agree to settle your case at mediation you will usually get the insurance company’s check within 2 to 3 weeks and the lawsuit will be dismissed.
- In mediation, the parties involved make the decision not a third person such as a mediator, judge or jury.
- If you do not reach an agreement in mediation, you can still have your case decided by a jury or resolved in some other way.
- Having your case decided in mediation may mean lower attorney fees and costs.
- One of the main advantages to coming to a settlement in mediation is that once the known and guaranteed agreement is reached, life can go on and plans for the future can be made, avoiding the stress and uncertainty involved in a drawn out lawsuit that can take years.
Are there any disadvantages to mediation? Since mediation is a voluntary process there are few if any disadvantages.
What does the Florida Supreme Court say about mediation? The Florida Supreme Court Committee on Alternative Dispute Resolution Rules and Policy has been working on proposals aimed at increasing the use of Alternative Dispute Resolution (ADR); mediation being one encouraged method of resolution. To read more about this you can visit this site from the Florida Bar Journal http://www.floridabar.org/DIVCOM/JN/JNNews01.nsf/Articles/4F0483833BFB8F8C85257524006E6753.
What are this author’s views on the use of mediation? As a personal injury lawyer in Gainesville since 1971, having 38 years of experience in helping injured victims get justice, I feel that mediation is a good process because it often allows the parties to settle a case earlier and with less expense. In pre-lawsuit mediation, (done before a lawsuit is filed) there is an additional advantage because the attorney fees are lower than the fees charged after a lawsuit has been filed. Mediation also allows each party to explore each party’s strengths and weaknesses of the case with the assistance of a neutral mediator. The mediation process also helps people evaluate how a jury would likely judge their case, which is the most important factor in making an intelligent determination of what to settle a case for. In my experience over 80% of personal injury cases that go to mediation reach a settlement. However, it is important to remember that both parties must agree to any settlement in the case and the plaintiff, or injured party, always has the option to turn down or reject the top offer made by the insurance company even in meditation.
Recommendations: It is important to have an experienced personal injury attorney or accident lawyer present the case at mediation and give guidance to the victim regarding what a reasonable settlement would be.
The Law Offices of Jeffrey Meldon, located in Gainesville, Florida has been working to get accident victims the justice they deserve for over 37 years in Gainesville, Ocala, Lake City, Inverness, and the rest of North Central Florida and Florida. Accidents involving a car crash, truck wreck, and motorcycle, bicycle, or pedestrian accidents, slip and falls and medical malpractice are all included in our practice.
We have been representing injured victims in Gainesville, Ocala, Lake City, Inverness, Daytona Beach, Dunnellon, Palatka, The Villages, and the counties of Alachua, Marion, Columbia, Citrus, Volusia, Sumter, and Putnam since 1971, and take pride in our work and results.
For more information about mediation, or any other question you may have, feel free to contact our office at 1 800 373 8000