Mediation is a process that helps the parties involved in a personal injury lawsuit to communicate more effectively, so they can try to resolve the case before heading to trial. The parties are assisted by a neutral third party called a “mediator” who is trained to help each side talk about their issues, needs, interests, and concerns. Mediation is a flexible process that typically goes as follows.
Once both parties are present in a controlled setting, the mediator will make introductions. If there are children, most mediators will ask that they wait outside. The mediator will then give an opening statement, to outline the role of the participants, define the ground rules, and set the time frame, while also demonstrating their neutrality. The ground rules help the mediation process move along smoothly. Attorneys will typically be asked to confer, but the clients should speak for themselves.
Each party is given the opportunity to fully share their side of the story without interruption. The intent behind each side making a statement is not a search for the truth, but a way to help solve the problem. The statement lets the parties frame the issues in their own mind, while also giving the mediator more information on their emotional state. If there are personal injury lawyers present who make the initial statement, the mediator will ask the client to speak as well.
The mediator may ask each party to respond to the other’s statement or the mediator may repeat back key ideas to the parties and will summarize often. This helps the mediator find common goals and build rapport between the parties.
Private caucuses (sessions) may be held with each party in separate rooms, in an effort to move the negotiations along. The caucus provides a safe environment as the mediator will go between the two rooms to find some common ground by exploring lots of options, and to bring about possible solutions for the parties to think about. Whatever is said to the mediator in the caucus is confidential, and will not be repeated to the other side without permission. This stage takes up the majority of mediation and can last several hours, days, months, or even longer until an agreement is reached.
The parties may be brought back together by the mediator to negotiate directly. However, this is unusual, as the mediator will typically not bring the parties together again until a settlement agreement is reached, or the amount of time allotted for mediation ends.
The closing of a mediation process is an important last step. If the parties reach a final agreement (80% of the time), whether partial or full, the mediator should insist that the terms be detailed using clear language, and in an enforceable written agreement signed by both parties. Care must be taken to ensure that the parties are fully aware of the next steps required, the timelines, and who bears responsibility for any actions to be taken.