The Mediation Process in a Personal Injury Case

What is Mediation?

Mediation is an informal process whereby the parties to a lawsuit come together and try and resolve their case. In Florida, every lawsuit that is filed must go to mediation before the case can go to trial.

Who is present at Mediation?

A typical mediation in a personal injury lawsuit will begin at the mediator’s office. Those present at the mediation are: the Plaintiff (the injured party), the Plaintiff’s attorney, the Defendant’s (the one who caused the injury) attorney, and the Defendant’s insurance adjuster (the one who makes the final decision as to whether to settle the case). Many times, the Defendant does not come to the mediation because it is ultimately up to his/her insurance company to make the decision as to whether or not to settle the case. The final person who attends the mediation is the mediator. The mediator must be certified and is usually a retired attorney or retired judge. It is best to find a mediator who has practiced in the area of personal injury so that he/she has a better understanding of the area of law.

How does Mediation work?

A typical mediation will begin with everyone getting together in a large room. The mediator will introduce himself/herself to everyone and will go over his/her role. The role of the mediator is to assist the parties is resolving their case. Although each lawsuit must go through mediation, the decision to settle the case is completely up to the parties. No party can be forced to settle their case, nor can a mediator make any decision on behalf of a party. The mediator will also remind the parties that everything that is said in mediation is confidential and cannot be used against any party in court.

After the mediator completes his/her statement, the attorney for the Plaintiff will be given an opportunity to give an opening statement. The opening statement will typically include an overview of how the accident happened, why the Defendant is liable for the Plaintiff’s injuries, an overview of the medical treatment, a discussion of the current health of the Plaintiff, and an overview of the Plaintiff’s medical bills. Next, the attorney for the Defendant will give his/her opening statement. Typically, the statement will emphasize his/her view of the case, why the Defendant may not be liable, and/or the Defendant’s thoughts regarding the Plaintiff’s medical treatment. It is very important to listen closely to the attorney’s opening statement because you are often able to learn how the Defendant’s insurance company is evaluating your case. The Plaintiff’s attorney will then have an opportunity to give a rebuttal.

Once the opening statements have been completed, the parties will separate into different rooms. The mediator will typically visit the Plaintiff and his/her attorney first to go over the case in depth. The Plaintiff’s attorney (with the permission of the Plaintiff) will make an initial demand. The mediator will bring the demand to the Defendant’s attorney who will then give the mediator a response to the demand. The mediator will go back and forth playing “devil’s advocate” with each side and exchanging the demands/offers. Most times, the mediator is able to bring each side together and settle the case. If that occurs, the mediator will have each party and their attorneys sign a document memorializing the settlement. If a settlement is not achieved, the mediator will merely file a document with the court saying just that. In the event a settlement is not reached, the attorneys will continue working on your case and will continue to try and get your case resolved. If all else fails, a trial may occur.

It is very important that your personal injury attorney have extensive experience conducting mediations so that you have the best opportunity to settle your case for the maximum amount possible. Should you have any questions regarding the mediation process, please contact Englander Peebles today at (954) 500-4878.