Why is Mediation An Important Part of Personal Injury Law?
Dating all the way back to Ancient Rome, lawsuits that take place in a civil court are preferential to courtroom litigation. In modern times, this method includes Personal Injury cases. When thinking of a legal case, we think “courtroom” and “judge”. However, there are downsides to cases going straight to trial. Usually, going to trial is not the first method of litigation, according to Personal Injury experts. Lawyers with more experience have clients in mind, not the idea of forcing unnecessarily long litigation. That’s why Mediation exists.
Is going to trial always necessary?
Of course, sometimes a case going to trial is the only fair option for the client. When a settlement offer is unfair to the client, a judge must make a decision. Two scenarios where a settlement offer may not be enough are TBI and wrongful death cases. While going to trial often take longer, sometimes the only way to properly recover damages for a client is in doing so.
Alternative Dispute Resolution
There are other methods of solving civil legal disputes. These are known as Alternative Dispute Resolution. The ADR method we explore within the context of this article is Mediation.
What is Mediation?
“Mediation” is necessary to avoid a lengthy trial. However, if trial is necessary to obtain justice for the client, the case will go to court. Lawyers who rush clients out the door with a poor excuse for a settlement are not to be trusted. It’s important for clients to see the red flags for what they are. Thus, a lawyer must do their due diligence when holding out for a fair settlement offer. One may never come. The lawyer must realize what’s fair to the client, and opt for trial under these circumstances. If the lawyer finds that the offers are consistently too low, this is when cases may see the inside of a courtroom. And for good reason.
The importance of ethics and experience
It’s important to understand that every aspect of a Personal Injury involves careful preparation. This careful preparation comes from years of experience; both Mediation and courtroom. A lawyer who advises their client to accept a settlement has their best interest at heart. A client should disregard “accept the settlement” advice because the offer seems “too small”. If the lawyer is credible and trustworthy, their advice holds weight. This is why a lawyer holding Board Certification is a client’s best option. When a Board Certified lawyer advises the client to accept a settlement, they know “what’s up”. Personal Injury lawyers should always have their client’s best interest at heart. A client’s best interest is a key factor of what makes a great, not just “good”, lawyer.
Mediation might be less expensive
When lawyers choose to use the Mediation method of “ADR”, they are seeking a less expensive means of case resolution. Reaching a suitable settlement with the insurance company is in everyone’s best interest. Mediation saves a client and their legal team many months or even years of legal proceedings. When a case must go to trial, the client may be looking at years before they see a penny of what the insurance company owes them.
Within Mediation the opposing parties work with a neutral third party. This person is called a mediator and they mitigate the dispute between parties. Unlike ADR method of Arbitration, Mediation is fair. During Mediation, the mediator does not have the final say in the dispute. Arbitration hurts Personal Injury clients and is not a safe method of ADR.
Why choose Mediation, and when?
When it comes to Mediation, there are many reasons a Personal Injury lawyer chooses this method. It’s important to go over any questions that may arise before Mediation day. A credible, ethical lawyer has their client’s back. This should be literally and figuratively, every step of the way. If the lawyer feels something is awry, the client should never worry their lawyer is unaware. The “gold standard” law firms, those with Board Certified lawyers, see hundreds of successful mediations a year.
Some things to know about Mediation:
- The parties and mediator (usually a retired judge) have control of where and when Mediation takes place. They also have control of who is present, and who finances it.
- Mediation is usually voluntary. However, occasionally statutes or court orders by a judge may require Mediation. When this happens, a subpoena is issued and clients must consult their lawyer immediately. A subpoena cannot be ignored.
What kind of settlements are available?
Next, we’ll look at the type of settlements available to a client. When lawyer and client accept a settlement offer, there are multiple ways they receive their compensation.
- Lump-sum Settlement. This is a settlement a client receives all at once. The amount agreed upon is distributed at the conclusion of Mediation. The lawyers agree upon the amount of compensation and the victim receives their share in a single check. This type of settlement allows for massive debt accrued to be easily repaid upon conclusion of the case.
- Structured Settlement. Client and lawyer consult and agree to receiving money in regular installments over a period of time. This type of settlement works if the client has another source of income or prefers to receive monthly installments to budget their finances.
What happens post Mediation?
When the Personal Injury lawyer and insurance company reach an agreement through Mediation, it may be oral or written. This depends on the parties’ legal preference. It also depends upon the reason for the Mediation. Whether or not Mediation is legally binding depends on the state in which the agreement is made. Most Mediation agreements, however, are legally enforceable contracts. The law firm representing the victim knows the answers to this in each specific case.
Mediation is usually prompt, less expensive, and provides a satisfactory resolution. It allows for a fair offer of compensation to the client for their pain and suffering. Many Personal Injury cases resolve through Mediation, and trial will not be necessary. However, it’s important to remember that each case is unique. When a credible lawyer must choose trial, it’s for a very good reason.