What Mediation Is, and Why Most Cases Settle There
A negotiation with help
Mediation is a structured settlement negotiation run by a neutral person, the mediator. The mediator is usually a retired judge or an experienced lawyer. They do not decide anything. Their job is to help the two sides find a number both can accept.
Most injury cases that become lawsuits settle without a trial, and a large share of them settle at or shortly after mediation.
Why it works
By the time a case reaches mediation, both sides usually know the facts. The depositions are done, the medical records are in, and each side has a realistic sense of the risk of trial.
A good mediator uses that. They will tell the insurer, privately, where its case is weak. They will tell you, privately, where yours is. Hearing it from someone neutral, rather than from the other side, is often what moves both sides.
What the day looks like
- It usually happens in an office or by video. Many mediations now happen by video, so you may not have to travel.
- You and your lawyer are in one room. The other side is in another. In most injury mediations, the two sides spend almost the whole day apart.
- The mediator goes back and forth. They carry offers and arguments between the rooms, and spend time with each side explaining what the other is thinking.
- It takes time. Expect a full day, much of it waiting while the mediator is in the other room. Bring something to read.
- Someone from the insurer with authority to settle is usually there or on the phone.
What is said stays there
In California, what is said in mediation is confidential. Offers made, statements about the case and documents prepared for the mediation generally cannot be used later at trial. That lets both sides talk frankly about the weaknesses in their cases.
How to prepare
- Know your numbers. Your lawyer will go over the medical bills, the liens, the fees and costs, and what you would actually take home at different settlement amounts.
- Think about your bottom line before the day starts, and expect it to be tested.
- Be patient with the early offers. The first offers at mediation are usually far apart. That is normal. The movement happens late in the day.
- Remember that you decide. Nothing settles unless you agree to it. If the number is not fair, the case goes on.
If it does not settle
Not every mediation ends in a settlement that day. Sometimes the case settles a week later, after both sides have thought about what they heard. Sometimes the mediator makes a “mediator’s proposal,” a number both sides can accept or reject privately. And sometimes the case goes on toward a settlement conference or trial.
Read how long does a case take? for where mediation fits in the life of a case.
Talk to Boyd
If your case is headed to mediation, or you are wondering whether it should be, call. The consultation is free, and Boyd takes the call himself: (714) 656-2400.