Posted on behalf of Anderson Cummings on Jan 06, 2020 in Personal Injury
Sometimes courts order both parties in an injury case to do mediation to attempt to resolve the situation before going to trial. Mediation is often effective and can help the parties better understand their positions and the risks of continuing to trial.
If your case has been ordered to go to mediation or you would like to consider mediation to resolve your personal injury claim, the Fort Worth personal injury attorneys at Anderson Cummings may be able to assist you. We can discuss your claim and legal options during a free, confidential case consultation.
How Does Mediation Work?
Unlike a lawsuit, mediation is a collaborative process in which the parties are guided toward settlement by a skilled mediator. They often work together and brainstorm possible solutions to their legal issue instead of treating each other as adversaries, as they often do in the litigation process.
Both parties generally sign a confidentiality agreement so that anything they say during this process is confidential and cannot later be used against them in court. The confidentiality agreement should require both parties not to discuss the case with others who are not involved and should prohibit the disclosure of private information. This can help protect each party’s privacy, confidential medical records and reputations.
Pros and Cons
Mediation offers several benefits to participants. If you and the insurance company have not been able to reach an amicable settlement of your claim, mediation may be able to break the stalemate.
Additionally, mediation may incentivize the attorneys for both parties to better prepare themselves for the claim. They can familiarize themselves with the facts and consider the legal arguments so that they can present them at mediation before presenting them in court.
The parties can select the mediator, and they can choose someone with subject matter expertise, such as a former lawyer or judge or an insurance adjuster. The mediator uses conflict resolution skills to facilitate communication and encourage settlement.
If an agreement is reached during mediation, the personal injury victim can receive the settlement funds faster and the insurance company can have certainty regarding the financial impact of the claim. Mediation can also prevent costly and time-consuming appeals.
However, mediation does have some drawbacks. The parties must pay for mediation and if the case is not settled, this simply adds an additional expense. Some insurance companies are reluctant to participate in mediation because it requires additional time and effort. Both parties may be afraid to communicate openly during the process in fear that the other party will find a way to introduce something they said and use it against them.
What Happens When Mediation Fails?
If the parties were ordered by the court to mediation, they will need to notify the court that the mediation was unsuccessful. The court may set a date for the trial, a pre-trial conference or another hearing to move the case forward.
If the first attempt at mediation does not result in a settlement, all is not lost. Mediation is effective in getting the parties to consider their position and how it will be objectively viewed by others. The parties exchange evidence and information that supports their position. The mediator provides objective feedback about this evidence and the party’s position. This information can help the parties reevaluate their positions and be more amenable to settlement.
The parties may continue to try to resolve their case through negotiations after mediation. They can also participate in mediation again. If the parties are still unable to resolve their case, they can proceed toward litigation, conduct additional discovery, file motions or otherwise continue with the case.
Contact Anderson Cummings for More Information
You have a right to be represented by legal counsel during mediation. Our firm offers a free consultation to discuss your claim and find out how we may be able to assist you.
We take cases on contingency, so there are no upfront fees and we do not get paid unless we obtain compensation on your behalf.