Having your case go to trial is a big step and constitutes a significant escalation in your case. It can also get very expensive legally so you have to consider whether it is worth going to trial over something that can be resolved out of the courtroom. Settling your case out of court is the optimal scenario.
Fortunately, a system exists to help disputing parties do this. Mediation has been successfully employed to settle cases out of court, helping parties arrive at acceptable agreements. It is a process where parties to a dispute have a confidential, collaborative forum to settle disputes.
Continue reading to learn the 6 steps of a good mediation process and how it helps you obtain the personal injury damages you need without going through an expensive, often painful trial.
• Introductory remarks
Every mediation session begins with the mediator delivering an opening statement in a neutral location. Mediators are judges and legal assistants who are trained in fostering discussion and finding consensus. They do not tell each party how to resolve their dispute but can offer advice on how to interpret certain things.
The mediator’s opening statement will also lay out the ground rules for the discussion.
• Statement(s) of the dispute
After the mediator gives his opening statement, each party will have the opportunity to describe their side of the story. The plaintiff will usually go first. These statements are not simply presentation of facts but rather an opportunity to see each side’s argument and begin the process of finding solutions.
If an attorney makes a statement for their client, the mediator will ask the client to make a statement so they can understand their emotional state.
• Information gathering
The mediator will ask open-ended questions to gather facts and understand each side’s emotional undercurrents. They will summarize often and repeat back key ideas to each party, which helps build rapport between each party.
• Problem identification
This may be part of other segments but the mediator will try to find common goals between each of the parties. They will use this opportunity to figure which problems will be solved and which ones will be solved first.
• Bargaining and generating options
Each party will meet individually with the mediator in what’s known as a caucus, a confidential meeting where the mediator can only share something if you expressly authorize them to do so. The mediator may also use group processes, discussion groups or sub groups to formulate options. Mediators may also put proposals on the table and then allow the parties to modify them.
• Reaching an agreement
If each party is committed to achieving a negotiated settlement, the mediator will propose a brainstorming session where possible solutions can be generated, which can lead to a final agreement. Again, the mediator may choose a caucus to move things along.
Mediation will be the last opportunity you will have to settle your case out of court. It’s not position bargaining but rather an understanding of the opposing side’s interests behind their respective position. You should know your case and do your homework before a mediation session and be sure participants in the session have settlement authority.
If you’re on the brink of having to go to court over a personal injury or some other legal dispute, consider mediation to avoid a lengthy and costly court battle.