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What Are the Advantages of Mediation?

One of the best tools in a personal injury lawyer’s arsenal is mediation. Mediation is a form of alternative dispute resolution. Mediation is a voluntary process and non-binding. It is voluntary in the sense that both parties have to agree to attend. It is not final and binding as in the case of arbitration, yet another form of alternative dispute resolution. Rather, the two sides are brought together by a neutral third person, often but not necessarily a retired judge, who attempts to effectuate a settlement.

Most major cases are mediated. They can be brought to mediation at any point: before suit is filed, during the litigation, or on the eve of trial. I have seen an evolution in the effectiveness of mediation. When they started to occur with some frequency, approximately 25 years ago, I did not see the success that I have seen over, say, the last decade. Success is defined as having a case that resolves as a result of the mediation process. Many mediators will boast a success rate approaching, or even exceeding, 90%.

The people present at the mediation are the opposing lawyers, insurance claims people and the client. The attorney makes the presentation and the client will usually not be asked to say anything. In that sense, it is quite different from a trial. Indeed, there are no rules of evidence, no one is sworn in and the process is in general a lot less formal than a trial. But looks can be deceiving. While the process does not have the grandeur or formality of a trial, the result is very meaningful. If the mediation is successful, it will allow for the injured party to receive compensation.

After short introductory remarks by the mediator, the process starts with a presentation by me, the plaintiff’s attorney. (I will discuss the seriousness with which I approach a mediation in the next blog.) The defendant then makes its presentation. After that, the parties are separated, usually for the entire mediation. I sit with my clients while the defense attorney and insurance company are placed in a separate room. Throughout the course of the morning and afternoon, the mediator engages in “shuttle diplomacy”, going back and forth between the two rooms, all the while exchanging settlement figures. If the process works according to form, at the end of the day, or perhaps by telephone in a few weeks, the case is resolved.

As I say, years ago I was a skeptic where mediation was concerned. After all, the process is only as good as the money the insurance company brings to the table. Fortunately, I am seeing many instances where they are bringing a proper amount of money.

Arbitration is another alternative to the courtroom and really deserves consideration but that is a subject for another blog.

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