The personal injury mediator will not tell the other parties your secrets

Even though the mediator will not tell the other parties your secrets, the mediator will know everyone’s secrets and may consequently be able to help the parties reach a more informed agreement.

For example: Going into the mediation, the plaintiff’s most recent settlement demand was $100,000 and the defendant’s most recent settlement offer was $25,000. In the first private session, the plaintiff secretly tells the mediator that they will settle for as little as $70,000 and the defendant secretly tells the mediator that they will pay as much as $60,000.

Going into the mediation

Although the parties may think that they are hopelessly far apart so that settlement is impossible, the mediator now knows that he or she has the ability to settle the case maybe that day. He or she will therefore get the parties to move their offers up and down and by the end of the day meet somewhere between the $70,000 minimum that the plaintiff will accept and the $60,000 that the defendant will pay. In this case, the mediator will probably work the parties toward a $65,000 settlement.

Third, at some point the mediator will have a good idea of whether the case is likely to settle that day. If the mediator believes that settlement is likely, then he or she will continue to work on trying to reach an agreement. If the mediator concludes that the case will not settle, he or she will end the session and send everyone home.

If the case settles, the parties and/or the mediator might write a summary of the terms of the settlement so there are no disputes later on about the terms of the settlement. If the case does not settle, sometimes the mediator will offer to call the parties at some point in the future to see if any of them have changed their position so that some additional work might accomplish a settlement.

If mediation was required by the personal injury judge, the mediator might also be required to send a report to the personal injury judge indicating that the mediation was conducted, as well as the outcome whether the case settled or not. There are a few additional facts to keep in mind about mediators:

Unlike arbitrators, mediators do not make decisions in your case.

Mediators cannot force anyone to accept or reject a settlement. Their sole purpose is to act as a neutral third party to provide an outsider’s perspective and to help the parties try to reach an agreement.

Mediators are usually paid for their time (usually split by the parties) and may charge well over $100.00 per hour.

Depending on the rules of your jurisdiction, mediators may or may not have to be injury lawyers and may or may not have to be certified as mediators.

A mediator cannot be called to testify about anything that was said at a mediation and, for that matter, nobody can testify about anything that was said at mediation.

Mediation is confidential. However, there is one exception to this confidentiality. If the parties reach a settlement but later disagree about the terms of the settlement, the mediator might be compelled to testify about his or her recollection of the terms the parties agreed to.

There is one final thing that you should know about mediation. If the case settles, both parties are usually happy that it’s over but typically neither party is happy about the terms of the settlement that was reached. That is the nature of compromise.

The defendant’s insurance company must pay more than it wants to and the plaintiff must accept less than they think they deserve. Cases settle because each side moves off of their position so that they can move toward each other and meet somewhere in the middle. If neither side moves or if only one side moves, settlement is just not likely to happen. So if you want to settle a case at mediation, be prepared to be somewhat disappointed, but as long as your settlement is reasonable compared to similar cases within the jurisdiction then you should be happy to have the case over with. In addition, just because a case does not settle at mediation does not mean that the mediation was a failure.

Even when the case does not settle, at mediation the parties gain valuable information about the strengths and weaknesses of each others case as well as a better idea of just how much money it will take to settle the case. Sometimes people just need a few days to consider an offer before accepting it.

1. Personal injury High Low Agreements for parties
High/Low Agreements Sometimes parties cannot reach a settlement agreement, yet for one reason or another both parties are concerned about what a jury is ultim...

2. At the mediation the parties are unable to reach a settlement
At the mediation, the parties are unable to reach a settlement. At the end of the mediation, the plaintiff has lowered her demand to $200,000 and the defendant has rais...

3. Burdens of Proof for your personal injury case
Burdens of Proof In order to win your case, you must prove that the facts support your case. Also, it is the plaintiff’s duty to prove his or her case, no...

4. How to prepare for the big day with your personal injury attorney
Preparing for the Big Day For most clients, especially those who have never been to court before, the weeks leading up to the trial date can be scary. During th...

5. Your personal injury case before the court
Courtroom Etiquette Before going to court, it is good to know some of the traditional rules of etiquette and injury lawyers often do not think to explain these ...

6. Personal injury attorney on the case day
Opening Statement When the jury has been chosen and is sitting in the jury box, the presentation of the case will begin with opening statements. The plaintiff, ...