What is a Mediation?
A mediation is a settlement conference where all the parties involved in a claim meet and have a "mediator" work to facilitate settlement discussions. The mediator, often a Senior Judge or experienced attorney, will work like a diplomat, shuttling settlement offers and demands back and forth between the parties, and having a heart to heart discussions with the parties about the realities of their claim, all in an effort to avoid further cost and expense.
Mediations are voluntary for the most part. Some courts require that you certify your efforts to resolve the case, but dragging unwilling parties into a settlement conference will almost never work. For mediation to work, everyone has to be on board with having a discussion about resolving the case.
How Does It Work?
There are no hard and fast rules on how a mediation are done. Some of our first mediations years ago began with everyone meeting in a large conference room to hear the mediator lecture on the virtues and philosophies of mediation. We rarely see a common meeting at the beginning of a mediation anymore.
Before the mediation session, each party provides a statement orienting the mediator about the case. In an auto injury claim, we provide police reports, medical records, medical bills, lost income information, and a copy of the court papers. We also provide our candid thoughts about the strong and weak points of our case knowing that everything we say is confidential, and will not be shared.
There are different motives that drive someone to mediation. One may be to avoid having to be the messenger to deliver the bad news. One party may have an unrealistic idea of what the claim is about, and an attorney may not be in a good position to deliver the bad news about a case. We are up front with our folks about the realities of any claim, so we do not resort to mediation for this reason. Other times, it as simple as getting everyone on the same room on the same day talking about the same case.
Some cases are complex, and involve catastrophic injury that involves not only significant past medical expenses, but a lifetime of medical needs.
In our recent mediation, there were several claims arising from a head on collision that could have been a much greater tragedy but for our client's fast thinking and excellent driving. She probably saved one, if not two lives that day.
Why Not Mediate?
Not all cases are suited for this process. The case may be one that can be resolved with direct discussions between the parties. This was more common in the past when adjusters and attorneys had some kind of working relationship, and could discuss a claim like professionals. With automation, the "human touch" is not what it once was.
Also, the parties may be so far apart on how they see the case that a trial or arbitration is necessary to resolve the case.
Multiple party cases like the one we just completed present unique challenges because there are limits to the amount of coverage available to cover all claims, which we call the "policy limits," and the mediator is often tasked with helping the parties sort out the relative value of a claim.
Our mediator, a Senior Judge from Clackamas County was making the rounds between three parties (two injured Plaintiff's and one Defendant's attorney). That slowed things down a bit, but throughout the mediation, my client was able to learn about the ins and outs of litigating a claim in Oregon, and in the end, made a thoughtful decision based on the realities in front of her.
Mediation is not just a matter of slapping some file materials together and sending them out to a mediator. It's a great opportunity for us to really think about the case, and plan for trial should things not work out.
If you have in injury case, and want to know your options about moving forward, contact us. We have been down this road many times, and can offer our thoughts and experience.