However, if you’re in the middle of a personal injury lawsuit or another civil case, you may hear someone suggest mediation as an option. Here’s what mediation involves:
Mediation Is Not Arbitration
The two words may have similar meanings to the general public, but as far as the law is concerned they refer to two completely different things. The decision of an arbitration board has an authority similar to a court decision (although it can’t act as precedent), and as such it is an alternative to a jury trial.
Mediation, however, is a supplement to a trial, and it can also supplement an arbitration case. If the parties of a case can’t seem to reconcile, they may bring in a mediator to act as a third party and assist the negotiations so that the parties can settle without going to trial. Unlike an arbitration board, a mediator has no legal authority over a case and doesn’t make any decisions, regardless of any other positions which the mediator may hold in legal circles.
All the mediator provides are the diplomacy skills and the objective viewpoint which are often needed when disputes get heated.
Mediation Is Confidential
Like any other private meeting between the parties of a lawsuit, a mediation meeting is held to the strictest confidence. Mediation isn’t the same as a court hearing, so everyone present is free to speak his or her mind without worrying that a statement will be on the record. That being said, you should avoid sharing your goals for the case with the mediator since this might affect his or her impartiality.
Mediation Is Not Always The Answer
Sometimes all negotiations fail. Sometimes the truth is too unclear to be settled by anything less than a trial by jury, and sometimes one or both parties are simply too stubborn for a reasonable settlement to be possible. Sometimes mediation isn’t enough and a case should end in court.
The advantage of mediation is that it provides an additional opportunity for the parties of a case to resolve their differences, but it doesn’t remove any other possibilities in the process. A case under mediation can still go to trial, whereas a case under arbitration gets rid of that option.
Leaving this option open is important because insurance and corporate defense lawyers hate going to trial thanks to all the added expenses. Personal injury plaintiffs are also usually better off settling before a trial can begin, but if a personal injury lawyer gets a reputation for refusing to go to trial, defense lawyers will know they can push for a lower settlement since they don’t have to worry about how the case will end.
By leaving a trial as an open possibility and by hiring a lawyer who is ready and willing to go all the way if necessary, you can maximize the size of your potential settlement while minimizing your expenses. Hiring a mediator may be necessary to reach this settlement, but if so it will be money well spent..