Mediation is a voluntary procedure used in personal injury claim
resolution. Mediation and negotiation can occur at any time during litigation.
The mediator is a neutral third party— often a lawyer, retired judge or
trained community volunteer. Most mediations are informal and nonbinding.
Anything said in the mediation room is confidential and cannot be used by the
other party in court.
Mediators make suggestions, but do not opine on liability issues
or make final decisions. If both sides come to a mutual agreement, a settlement
can be drawn up in a short amount of time, with relatively little paperwork. If
parties cannot come to an agreement, the case may continue advancing toward a
personal injury lawsuit and trial.
What happens during the process of mediation?
New
York personal injury lawyers for each party prepare written
summaries for the mediator to read and make brief presentations in the presence
of the other party. There is no testimony, but parties are welcome to make
brief statements. Unlike courtroom proceedings, there are no restrictions on
what can be said or how evidence is presented. Next, the parties speak directly
to one another, with the mediator acting as a facilitator of the discussion.
After the opening presentations, each party speaks alone to the
mediator. The mediator then conducts shuttle diplomacy, going between the rooms
to find common ground. Without revealing what was said in confidence, the
mediator uses information gathered from both sides and the power of persuasion to
break a stalemate and arrive at a mutually agreeable resolution.
Enforcing a mediation depends upon whether the matter was in
litigation or not:
- During litigation – A motion for enforcement can be made pursuant
to Code of Civil Procedure §664.6. - Outside of litigation – The mediator can act as an arbitrator to
render the award.
Are there any cons to mediation from a plaintiff’s standpoint?
Cost is the main downside of mediation, as the hours spent in
mediation can add over $1,000 onto the total expense of litigation, particularly
if a professional mediator is used. Also, it can be challenging to get
insurance adjusters to agree to this when it’s easier for them to delay,
minimize, or deny your claim. If it doesn’t seem like you’ve prepared a strong
case or sought legal representation, the insurer will avoid the extra hassle of
sending a personal representative to mediation sessions.
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Why is mediation used in New York personal injury cases?
Mediation can be much faster, easier, and less expensive than
going to trial. If the insurance dispute exceeds $3,000, it’s worth seeing if a
mediator can help. Compared to other types of alternative dispute resolutions,
mediation is favored for 80-90% of all cases due to the informality and
flexibility to accept or reject a proposal.
Serious personal injury matters are rarely fully settled in
mediation, but the procedure serves a vital purpose nevertheless. Whether
preparing for settlement or trial, many lawyers consider mediation a crucial
part of exploring the case strengths, weaknesses, and potential value.
Do you need a lawyer for mediation in New York?
The experience of a skilled personal injury lawyer
is
invaluable to the process of mediation. Without a sense of what is realistic
and possible, it can be difficult to advocate for yourself and recognize a fair
settlement when you see one. Our attorneys have extensive expertise in
mediation, arbitration, negotiation, and litigation. You can count on us to
bring our A-game and work tirelessly for the best possible outcome. We won’t
accept a lowball settlement. Call now to schedule a free consultation. You owe
no payment for services unless we win.
Additional Resources:
- https://www.mediate.com/articles/carbone5.cfm
- https://mattlaw.com/how-personal-injury-mediation-works/
- https://www.nolo.com/legal-encyclopedia/mediation-personal-injury-claims.html
