What is a Mediation?
During any type of personal injury litigation, you will likely end up in a mediation. At Wolfson & Leon, our personal injury lawyers are accustomed to one of the most asked questions by clients - what is a mediation? To have a complete understanding of the mediation process, it might be helpful to know the policies behind mediation and then how the process takes place.Why Do We Have to Mediate My Case?
Mediation is the most popular form of alternative resolution in the American justice system. By the time litigation begins, many clients are aggravated that the process is taking so long. Often the focus of their anger is the defendant or the defendant’s insurance company for failing to make a reasonable settlement offer. They feel that the insurance company is trying to take advantage of them. Many clients would rather go to trial been spend hours in some settlement conference that will end up with an unsatisfactory offer by the insurance company once again.
In some cases, the insurance company is not interested in mediation either. They feel that they have made a fair settlement offer and stay true to their principle of paying what they owe but not a penny more. Insurance company representatives often feel that mediators savor plaintiffs in personal injury mediations. They feel that the pressure is always on them because they have the money.
While both sides have valid reasons for not trusting the process of a mediation, the fact is that most cases resolved at mediation or shortly thereafter. Statistically, between 80 and 90% of all personal injury cases are resolved without the necessity of a jury trial. Insurance companies are aware of the statistic and so are the judges.
The decision to mediate is not necessarily controlled by the plaintiff or the defendant or the insurance company. The judge ultimately controls the litigation. On occasion the plaintiff or defendant will file a motion to dispense with mediation only to find out that the judge will not only deny the motion but also make it clear that mediation will take place in all but the rarest of circumstances. From the judge’s perspective, this prevents either side from posturing for some advantage at mediation by acting as if they will never accept less than policy limits or the insurance company will never pay more than they originally offered. Simply the judge doesn’t want to hear it. That is one reason why the judge will send nearly all cases to mediation before the parties are allowed to go to trial before a jury.
There is another reason why the mediation is important to the judge. In Florida, judges are appointed or elected. Eventually most judges have to run for reelection as well. One of the measurements of a judge can be the number of times that they were reversed on appeal. This is where the concept of mediation helps a judge.
If 80 to 90% of cases are settled at mediation, then none of those cases go to trial. A case not tried is a case not appealed. A case not appealed is a case where the judge is not reversed. Judges are also measured by the number of cases that they have open at any given time. Cases that are resolved that mediation are a positive for the judge’s record as well.
Lastly, mediations are a much more cost efficient way to resolve cases. Typically, there is very little cost associated with a mediation. In some cases, exhibits, may be presented and perhaps a PowerPoint demonstration as well. But compared with the high costs of bringing in expert witnesses to trial and all other trial associated costs, mediation is clearly more cost-effective. Especially where 80 to 90% of cases ultimately get resolved at or after mediation but before trial.What Happens at Mediation?
In most mediations, you will have already met with your attorney to discuss the process and the strategy to see if you can resolve your case. Once the actual mediation begins, you will meet the mediator who will act as an impartial facilitator who tries to bring both parties to a point where they agree to resolve the case.
In Florida, mediators need to be certified. Most are former trial attorneys and/or judges with vast amounts of experience in a wide variety of cases. Over time, plaintiff attorneys and insurance defense attorneys develop a rapport with certain mediators and generally try to stick with who they know. Most of the time the attorneys for both sides will agree on a few mediators. In the unlikely event that the parties cannot agree, the judge will decide.
At the mediation, you can expect that the mediator will speak first. He or she will probably tell you about their background and then speak directly to your case. They will explain the process which usually involves an opening statement by both sides and then the parties are separated into different rooms or locations. At that point the mediator will shuttle back and forth between the parties and their attorneys.
Once the parties are separated, the mediator will meet with one side and then the other. In these discussions with the mediator your attorney may instruct the mediator on certain strategies or evidence that can or cannot be disclosed to the other side. Sometimes an attorney will reveal certain facts only to the mediator so that the mediator will understand the position that they are taking. Information or facts that are held back by usually the type of evidence that an attorney they want to use a trial for maximum benefit. At the end of the private meeting with the mediator the attorney will usually authorize a certain number that the mediator can take to the other side.
The mediator then goes to the other party and discusses the case with them. The mediator will discuss numbers as well as weaknesses and strengths of the case. The other attorney may also withhold certain information that he is only disclosing to the mediator. At the end of their private meeting, or caucus as it is called, the other attorney may authorize the mediator to go back to the other side with another number in an effort to resolve the case.
This back-and-forth shuttle diplomacy by the mediator can extend for hours. The mediator will generally push both sides to keep moving to resolve the case. So long as all the parties are continuing to talk and move in their negotiations the mediator will keep the process alive.
Most mediators will tell the parties and the attorneys that most good settlements involve all parties being unhappy and upset with the result. But the result is acceptable and therefore the case resolves.
In certain cases, the mediation is not successful and an impasse is declared. This does not mean that the parties cannot continue to negotiate nor does it preclude another mediation later after additional work is done. But to get to a jury trial, you are likely to have to attend at least one mediation in good faith before the judge will allow your case to proceed to trial.
The personal injury lawyers at Wolfson & Leon have represented personal injury victims in cases since 1963. Our accident attorneys have participated in mediations involving all forms and types of personal injury cases. If you have any questions about the mediation process, then please feel free to give us a call at (305) 285-1115. Our accident lawyers handle cases in Miami, Fort Lauderdale, West Palm Beach and all over South Florida. Give us a call today and let us answer your questions.