What is Mediation in a New York Personal Injury Case?

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.

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:

  1. https://www.mediate.com/articles/carbone5.cfm
  2. https://mattlaw.com/how-personal-injury-mediation-works/
  3. https://www.nolo.com/legal-encyclopedia/mediation-personal-injury-claims.html