If you filed a personal injury lawsuit, there’s a good chance that your case could be settled out of court. Sometimes, an out-of-court settlement can be reached through guided negotiations in a mediation session. Mediation is a form of alternate dispute resolution (ADR) and may be voluntary or court-ordered, depending on the nature of your case. When you work with JJ Legal, we’ll advise you about how mediation works and answer all your questions before negotiations start.
Do I Have to Go Through Personal Injury Mediation?
A judge may order the parties to participate in mediation before they’ll hear your case at trial. Whether the judge will require mediation may depend on what type of personal injury claim you have and where you live. Some types of claims, like medical malpractice, may have mandatory mediation in some states.
In Illinois, you don’t have to go through mediation unless ordered by a judge, but your lawyer may encourage it. Mediation is beneficial in several ways. You have more control over the process and the outcome than you would in the trial, when anything can happen. Additionally, how mediation works is that it offers a chance for more creative dispute resolution, so you and the other party may come up with an out-of-the-box solution to compensate you for your losses.
Mediation Process Information and Considerations
The mediation process typically follows these steps:
Introductions and Ground Rules
How mediation works is that it begins with all parties being introduced. Usually, those participating are the injured party and their lawyer, the at-fault party and their lawyer, and the insurance company representative (and possibly their lawyer) who will pay any settlement. The at-fault party may not appear; they may have their lawyer represent them.
The mediator introduces themselves and sets boundaries, ground rules, and goals for the session. Then, each party signs a confidentiality agreement. What happens during mediation is confidential. You can discuss things in the session that may not (with very few exceptions) be used if the case goes to trial.
Opening Statements
Each side gives an opening statement. Don’t worry – your personal injury lawyer can give the statement and communicate in any other way you wish. You don’t have to worry about what to say. The injured party goes first, stating the nature of their injury and the extent of their loss. They may introduce evidence, like photos, videos, statements, or records.
The at-fault party’s lawyer makes an opening statement, too. Usually, they will talk about why they should pay less than your personal injury lawyer demanded. They may have their own evidence, too, trying to show that you were to blame for the accident or weren’t as badly injured as you claim.
Once both parties complete their opening statements, they separate for the rest of the mediation session. The mediator goes back and forth between both parties, communicating each side’s intentions and offers for compromise and making suggestions to help the parties agree.
How Much Should I Tell the Mediator About My Claim?
Anything you or your lawyer tell the mediator after you separate from the at-fault party is up to you. The mediator cannot disclose anything you tell them unless you give them permission. There may be a problem with the evidence in your case, for example, that the mediator should know, but the at-fault party shouldn’t. This may make you more motivated to settle than you want the other side to know. If they know you’re eager to avoid certain things coming out at trial, they could lowball you.
Can the Mediator Make Me Settle?
No, mediators can’t make you settle. They can, however, address weaknesses in your case and point out some possible compromises to consider. They could point out the advantages of reducing your demand or suggest other options for compensating you. Or they could explain to the at-fault party why they should make a higher offer.
They may also ask questions about your case to help you reach a compromise. Most mediators have a professional background in personal injury claims. They could be retired judges or former attorneys. So, they’re familiar with your state’s personal injury laws and what is and isn’t possible.
Your mediator may also remind both sides of the risks if you go to trial. This could include reminding you that you don’t know what a jury could do or that trials are public records. There could be things that you don’t want anyone to know about. If you settle, you can ask for nondisclosure as part of the settlement agreement.
Concluding Mediation
If you reach a settlement agreement, both parties will sign a Mediated Settlement Agreement. Then, the attorneys prepare the paperwork necessary to file the settlement agreement with the judge. Once that’s complete, you sign a release after your lawyer reviews it. When the release is signed, the insurance company reviews it and then releases the check.
If you cannot reach an agreement in mediation, your case progresses to trial. However, there’s still a chance that you could settle your case before the trial begins or even after the trial starts.
How Can a Personal Injury Lawyer Help Me in Mediation?
How mediation works is that you aren’t required to have an attorney to go through mediation. But legal representation gives you a significant advantage over going it alone. Emotions can run high during mediation. And your lawyer can be your cool-headed advocate, helping to keep you calm.
Many personal injury lawyers prepare as if trial is inevitable, and will start gathering evidence and building their case right away. They may have access to resources you don’t or find sources of evidence you didn’t know about, which puts you in a stronger position for negotiations.
The at-fault party will probably have at least one lawyer, maybe more. It can be intimidating if it’s just you against them. Your attorney will protect you and keep the at-fault party and their insurance company from violating your rights.
A personal injury lawyer can accurately assess the value of your case. You may have no idea what your claim is worth. Your lawyer will consider your current losses and your future needs so that your demand encompasses all your potential losses.
Don’t go through mediation alone. When you need help with your personal injury case, call JJ Legal at 312-200-2000 for a free consultation.
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