Mediation is a form of alternative dispute resolution that is an alternative to the traditional trial setting. Often times, cases that have been presented to a Court, will be directed to a form of alternative dispute resolution by the Judge, to see if the parties can resolve the issue amongst themselves, before going through the massive undertaking of an actual trial. Personal injury cases often are solved in an alternative dispute resolution setting before an actual trial commences, in a setting such as mediation.
According to Merriam-Webster’s dictionary mediation can be defined as “the act or process of mediating; especially intervention between conflicting parties to promote reconciliation, settlement, or compromise.” In a legal setting, a mediation includes representatives from each side that will come together at a place or their choosing, or a place approved by the Court ordering the mediation. Each party will make a short presentation of their positions and then negotiating will begin, with a certified mediator overseeing the proceedings. Sometimes, parties all stay in one room and discuss the issues to try to arrive at a resolution. More traditionally though, each party and their representatives go into their own rooms and are separated. The mediator will then go back and forth between the two parties and their representatives to try to engineer a compromise that works for all.
Your potentially last opportunity to try and settle your personal injury case before going to trial. By this point, all discovery and depositions have been done and this last step is actually required by the courts to attempt to resolve the case before taking it the courthouse and having a judge or jury decide it.
Usually, this happens in front of a mediator who is a retired judge and where each lawyer gets to tout the strength of their case and why they believe a jury will side with them. This mediator is a neutral person who works with both sides in order to try and settle the case. A settlement is an amount of money agreed upon for dismissing your lawsuit.
A common confusion is that mediation is a trial. However, it is not, as many times the client’s don’t need to speak at all and the attorneys will do all the talking with the mediator and the other attorney(s). It is actually a really informal setting. It will likely begin with your attorney negotiating your case with the mediator and highlight how strong the case is while submitting a demand to the other side which will do likewise. This is pretty much the process for the whole mediation. All being done in the effort by the end to hopefully come to an agreement in order to avoid a full trial.
Another common misconception is that the mediator is on one side or is against you. The mediator as stated before is a neutral person who really doesn’t care whether the case settles or not. Their purpose is to act as an independent outside, objective voice, which many times is needed in order to try to resolve the dispute.
Now, there is no need to feel forced, as it is always up to the client to say yes or no. Additionally, everything that happens in mediation is confidential. So if the case does not settle and goes to trial, rest assured that what is said in the heat of negotiations cannot be used against you and vice versa.
With that in mind, most cases that do go to mediation end up settling and those that don’t that day still do end up settling after mediation before trial. So the worst that can come out of trying to resolve the case through the mediation now is a waste of a day or half a day. So it can be quite helpful.
What if we don’t agree?
Always remember, just because you are mediating, doesn’t mean you have to agree. If the terms of the resolution being presented are not up to par with your expectations, there is no obligation to agree just because you are at a mediation. Always make sure to speak with your attorney to make the best decision for your circumstance, but simply put, there is no obligation to agree when at a mediation. Mediation is only a tool to try to resolve the issue without an actual trial.
Alternative Dispute Resolution, A Series: The Nuts and Bolts
The Mediation Process
No one ever plans on getting into a car wreck, and a serious collision can have a negative lasting effect on a person or family. When a Plaintiff is injured, often times the costly and timely process of litigation can be seriously reduced or avoided with the use of Alternative Dispute Resolution (ADR) tactics.
ADR advocates are part of a movement amongst lawyers that attempts to cut down on the cost, time, and stress associated with the litigation process. Often times, litigation can take years and thousands, if not hundreds of thousands, of dollars to complete.
Mediation is a good way to resolve issues quicker and cheaper. This is one form of Alternative Dispute Resolution. Mediation is a process where the parties to a dispute meet with a neutral trained facilitator, called a mediator, to try to resolve a conflict. The parties, their attorneys, and the mediator discuss the goals of each party, the reality of each party’s position and explore possible solutions.
The mediator talks about the settlement alternatives between the parties. Mediation is often thought of as a business-like, supportive climate which sets the stage for positive communication in the future. It is not very adversarial and often times the parties are separated after an opening statement.
The mediator establishes and enforces procedures which are fair and even-handed and which provide all sides a chance to be heard. Mediation also provides an opportunity to express emotions or frustrations which may be blocking negotiations and to address these underlying concerns in a controlled environment.
The length of time needed for a mediation depends on the complexity of the dispute, the commitment and communication skills of the parties and the orientation or limitations of the mediator. Many issues can be resolved in one mediation session of two to four hours; other cases may require multiple mediations.
Mediators provide a safe and cooperative environment which encourages open and honest discussion. The mediator’s role is an impartial one, identifying issues, exploring underlying interests, suggesting options and balancing power. Mediators encourage the parties to put the past behind them and to focus on the present and future.
Mediation is a confidential process. The mediator cannot be called as a witness at trial. The mediator does not have to be an attorney. However, it is usually beneficial to use someone familiar with the laws applicable to the case.
There are some free mediation services available in Texas. However, mediation costs typically range from $500 (half day) to $3,000 (full day). Generally, the parties split the cost of mediation.
If an agreement is reached at mediation, the parties and the attorneys will sign the document prepared by the mediator. Each party and attorney gets a copy of this binding agreement. If no agreement is reached, the case will proceed and the disputed issues will be heard by the judge or a jury, if appropriate.
Is the outcome of mediation final?
If the parties are able to come to a resolution during the mediation process, the resolution will be submitted to the Court for approval. If the Court approves of the resolution the parties came too, the matter is considered resolved. At that time, the Court will enter the terms of the mediated agreement into the Court record and will enforce the terms as they were outlined by the involved parties.
It is important to always know your legal rights and be properly apprised of them in every situation. The attorneys at Herrman & Herrman PLLC are always on standby to help! Contact Herrman & Herrman PLLC, located at 1201 Third St., Corpus Christi, Texas 78404 or 801 E. Fern Ave., McAllen, Texas 78501. If you have any questions about a potential claim or would like to sit down for a consultation and discuss your issue, please contact us immediately. At Herrman & Herrman PLLC, we always strive to put our clients, first!
*This blog is for informational purposes only and is not intended to, and should not be construed as legal advice.