Alternative Dispute Resolution: Mediation
Dating all the way back to Ancient Rome, lawsuits that take place in a civil court as well as civil trials are and always have been considered a standard method for resolving civil disputes; this includes Personal Injury claims. When the average person thinks of a legal case, they think “courtroom” and “judge”. There are downsides to going down a road that leads to trial. This is why it’s not always the first method of litigation utilized by top lawyers. Experienced lawyers have their client in mind, not getting into a courtroom when it’s unnecessary to do so. That’s when Mediation comes into play.
Of course, there are times when taking a case to trial is the only option and must be done to protect the rights of an accident victim to the fullest extent of the law. Catastrophic injuries and wrongful deaths being two of these scenarios. While a case that goes to trial can often take much longer, become costly, and become tied up with continuances and unforeseen delays, a lawyer will make the decision to take a case to court when he or she feels wholeheartedly their client will be compensated more fairly with a judge presiding, and cannot see eye to eye with the opposing party on a settlement offer that’s fair to the victim.
There are other methods of solving civil legal disputes, though, that don’t involve the same emotional components of going to trial that can take its toll on the victims, or on those who lost a loved one. One of these methods, and the one we’ll explore within this article, is Mediation.
“Mediation” comes into play when avoiding a lengthy, expensive lawsuit is of utmost importance. This doesn’t mean, however, that a lawyer should rush into a settlement offer the first chance they get. If this seems to be happening, it’s a red flag, and a client should quickly find another law office to represent them. On the contrary, a lawyer must due his or her due diligence in fielding fair and just settlement offers on behalf of the client. If the lawyer finds that the offers are consistently too low, then the case may be forced to go to trial to provide the victim a fair outcome.
It’s important to understand that everything an experienced lawyer does is based on precedent and the previous cases that allowed them to build on the knowledge they’ve gained over many years in practice. A lawyer advising their client to accept a settlement offer should be advice taken into consideration, never disregarded simply because the client might think the offer “too small”. The lawyer should always have their client’s best interest at heart, and with the moral standing board certified civil trial lawyers and known to behold in order to achieve such distinction, they are trustworthy.
More efficient, less expensive
When a personal injury lawyer seeks to use the Mediation method of “ADR” (Alternative Dispute Resolution), they are seeking a more time-efficient and cost-effective process to resolving their client’s case out of court–this could mean a larger amount of compensation for the victim. Reaching a settlement with the opposing party (the “defendant”) is in everyone’s best interest and can save a client and their legal team many months or even years of stress, financial losses, medical bills, and mental anguish.
Now we’ll look at the ins and outs of exactly what happens when this method of Alternative Dispute Resolution is utilized in a case.
There are times when stress is high, emotions are volatile, and parties are unwilling or simply unable to resolve a dispute over an accident. This could be as “simple” as a car accident where the victim sustained whiplash injuries, or as serious as a motorcycle accident in which the victim sustained a serious Traumatic Brain Injury. This level of stress happens often, but an experienced lawyer is there to mitigate this for the client. Mitigating stress on the victim is one of the things a board certified civil trial attorney does that sets them above the rest of his or her peers. The victim has been through enough, now it’s in the lawyer’s hands.
Besides being highly experienced in actually being in the trenches with clients over many years, going to trial when necessary, senior lawyers are also the experts in the method of “mediation”, and staying out of the courtroom as well.
Within mediation the opposing parties work with a neutral third party. This person is called a mediator and they can mitigate the dispute between parties by mediating the exchange of information between the parties. Unlike the Alternative Dispute Resolution method of Arbitration (one we’ve established in previous articles is not fair to a victim who sustained catastrophic injuries), the mediator does not have the final say in the dispute.
Why mediate, and when?
When it comes to mediation, there are many reasons a personal injury lawyer will choose to go this route as opposed to going to trial. It’s important to listen to a lawyer carefully while he or she is explaining what may be asked during mediation, and to go over any questions that may arise before stepping foot in the mediation room. A lawyer is on their client’s side, literally and figuratively, every step of the way. If they feel something is amiss during mediation, the client should rest assured their lawyer was aware of it and is going to act accordingly at the right time.
Some things to know about the ADR method of Mediation:
- The parties and the mediator have control of where and when the mediation takes place, who is present during the mediation, and how the mediation is to be financed.
- Mediation is usually voluntary; however occasionally statutes or court orders issued by the judge may require participation in mediation; when this happens, a subpoena may be issued and the client must consult their lawyer at once with any questions before the date they’re required to appear.
Clients shouldn’t worry, the most experienced lawyers see cases through mediation every day, and it doesn’t in any way make a case “less important”. In fact, the Shaked Law Firm in Miami, Florida has obtained multi-million dollar settlements during mediation in numerous cases since its founding in 2007.
What happens after?
When the parties reach a resolution via mediation, it may be oral or written depending on the parties’ legal representation and the purpose of the mediation. Whether or not the mediation is legally binding depends on the state in which the mediation took place. Most mediation agreements, however, are considered contracts and can be legally enforced when need be. The lawyer representing the victim will know the answers to this as per the specifics of the case.
The process of mediation is usually considered to be prompt, less financially detrimental, and more simplified from a legal standpoint than formal litigation in a courtroom. It allows for a resolution of the circumstances that initially brought the litigation instead of getting tied up in legal issues that can drag a case out for months or even years.
“The Holy Grail”
As we stress in nearly each and every article on the Law Resource Blog, it’s in every accident victim’s best interest to hire a board certified civil trial attorney; a board certified civil trial lawyer can be considered the holy grail, especially in Personal Injury law. Lawyers with this distinction have performed successfully in every area of their chosen profession: from a consistent, years long record of client satisfaction to the maximum amount of compensation obtain in a large amount of their cases and their ethics in practicing the law.
In the event of an accident, victims or their surviving family members (in cases of wrongful death) want to get into a law office as quickly as possible. While the victim or their family may not hire the first lawyer they consult with, it’s important to seek legal advice, no matter which law firm ends up providing representation. Once legal representation is secured, heed their legal advice carefully. A board certified civil trial lawyer knows the ins and outs of the legal system and is the best one to explain the nuances of a specific case, as no two personal injury claims are exactly alike.