Mediation in Personal Injury Cases
If you have to file a personal injury lawsuit to protect your rights, chances are you will try mediation with the other party. Typically, mediation is conducted with the
attorney for the injured party, the injured party, the attorney for the defendant and the insurance adjuster for the defendant. Mediation is voluntary, but if one of the parties is reluctant to mediate, the court will usually attempt to persuade that party to mediate unless it appears that it will be a waste of time.
In addition to being voluntary, the mediation process is confidential. This means that things you reveal in mediation can not be repeated at trial - unless you repeat them. It is designed to get the parties to the negotiating table and have an honest discussion about the relative strengths and weaknesses of their personal injury cases.
I recently mediated a rear-end accident case in Oakland. The parties were able to offer their honest assessments of their case and the opposing party's case, and we were able to resolve the case within 1 week. We were able to see that what we thought was a real winning argument was just a sideline argument, and the other side was able to see that their "star" witness was not going to be an asset for them. In other words, both parties were able to get a reaction to their positions and realize that they both had something to lose if we proceeded on. This was a case where the other side denied liability, and denied that the rear-end accident even took place, and where we thought we had a great case. We did have a great case - and through mediation we were able to show the other side that we were serious about our case, and that our case had significant value.
My preference is to use a mediator who has experience with defense work. They typically will tell me when my case is not as good as I think it is, and also tell the defense attorney when their case is not is good as they think it is. When a defense attorney tells another defense attorney that they are going to lose, the case usually settles. On the other hand, if the mediator tells me that my clients have no case (this has not ever happened), I would know that I needed to take a second look at the case.
Pete Clancy is a personal injury lawyer in Oakland, California. He can be reached by email or by phone (510-251-8868).