Between the initial filing of your personal injury claim and a trial, you might go through mediation to try to settle your case. Some states require mediation in personal injury cases. In other states, a judge might order mediation, depending on the type of personal injury claim you have. In other situations, mediation is optional.
If your case is heading to mediation, you might wonder how to win at mediation. Winning looks different in each case. When you work with an experienced personal injury lawyer, they can help you develop a realistic expectation about how your case could conclude.
What to Expect from the Mediation Process
Mediation is a means of dispute resolution. A mediation session is facilitated by a trained mediator who will oversee the process and encourage the parties to compromise. Mediation begins with introductions of all parties. Those parties usually include:
- The plaintiff (the injured party) and their attorney
- The defendant (the at-fault party) and their attorney
- A representative from the defendant’s insurance company and their attorney
- The mediator, usually someone with professional experience in personal injury cases
Each side makes an opening statement. These may be brief, simply outlining the extent of the plaintiff’s injuries and the amount of compensation requested and setting out the defense’s version of events. Or they can take a few hours, as evidence is produced that supports each side’s position. The parties then separate, and a mediator goes back and forth between them to help them reach a compromise.
Mediation sessions are confidential, and with very few exceptions, any new material introduced in mediation cannot be used in a trial. You can feel free to talk about things you wouldn’t want to include in a trial or present evidence that may not be admissible according to your state’s rules of evidence.
The mediator can give their opinion when asked but cannot make either side agree to a settlement. The role of the mediator is to help each side focus on their goals, help them be realistic about expectations, and facilitate a compromise. They may also remind each side of the potential outcomes of a trial or what they stand to lose.
What Does Winning Personal Injury Mediation Look Like for You?
Winning in personal injury mediation will look different for each party in each case. For a corporate defendant, a win could include a nondisclosure statement that protects the company’s reputation and value. For an injured plaintiff, a win could include an apology and coverage of long-term nursing care.
Part of your personal injury lawyer’s job is to help you manage your expectations. They can work with you to develop a “good, better, best” amount for any settlement. They can also help you determine the point where you walk away from mediation and take your chances with a jury.
Maybe your case is weak, and liability is unclear. In this situation, a win may be any kind of settlement since you could lose at trial. If you have a strong case, though, winning at mediation may mean getting the full amount you asked for.
Mediation Strategies for Winning
Not every personal injury case has an obvious winner. Some may lack enough evidence to go beyond the plaintiff’s word against the defendant’s. In other cases, the plaintiff may share some of the blame for the accident. This could make the issue of liability less clear-cut.
Although it may be difficult, keeping your emotions out of the negotiation process usually yields the best result. In mediation, you should be focused on obtaining compensation for your losses, not necessarily on proving the defendant’s guilt.
Some tips that JJ Legal has suggested for our clients include:
- Be open to creative settlement options. Mediation allows you to have more control over the process, so you can be more creative with how the settlement works or which elements you’ll be paid for. A mediator may be able to suggest some out-of-the-box alternatives to help both sides find an acceptable solution.
- Focus on the problem, not the person. The defendant hurt you, maybe changed your physical abilities for life, or left lasting trauma. You’re justifiably angry, but if you can separate the defendant from the problem at hand, you’re more likely to reach a compromise.
- Be realistic about what the defense is likely to pay. For example, if the at-fault party’s insurance policy liability limit is less than the amount you asked for, that may be all the money you can get from the defendant. While it may not be everything you want, the maximum could be enough to cover your needs.
- Use objective means to quantify your losses as much as you can. It’s difficult to put a dollar amount on your pain and suffering. But, if you can show specific examples of the impact of the injury on your quality of life and ability to work or care for your family, then you may have a better chance of getting the compensation amount you want.
Your attorney may have other tips to help you get what you want. They can help you remain focused on your goals instead of focusing on the person who injured you.
What Happens After Mediation?
If you and the other party settle, you’ll submit the signed Mediated Settlement Agreement to the court. Once it’s filed and approved, then the defendant’s insurance company will send a release, unless they included a release in the settlement agreement. The release says you cannot file an additional lawsuit against the defendant for the same incident. Have your lawyer review the release before signing it to ensure you’re not giving away any rights. Once the release is signed, the insurance company can cut your check.
However, if you don’t settle in mediation, the case progresses to trial. Your attorney can prepare you for the trial and explain what happens next.
Do You Need Help with Your Personal Injury Claim?
If you’ve filed a claim against the at-fault party’s insurance company and have been asked to attend mediation, it’s not too late to get a lawyer. Working with a skilled personal injury attorney from JJ Legal can result in a better outcome than you could achieve by attending mediation alone. Contact us today by calling 312-200-2000 for a free consultation.
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