Personal injury cases arise in lots of ways. Some people are injured in motorcycle, car, or semi-truck crashes. Others may be struck and injured as pedestrians or while riding bicycles. Many suffer injuries as a result of medical malpractice, nursing home negligence or abuse, or the negligence of a business.
In all of these cases, life changes dramatically for the victim. In addition to handling any property damage and attempting to resolve medical injuries, time-consuming litigation often ensues.
And that brings us to the question we will address in this article: “Is mediation a good option in a personal injury case?”
What Is Mediation?
Mediation is a form of alternative dispute resolution in which parties to a lawsuit use the services of a third-party neutral to attempt to settle their case.
Some people confuse arbitration and mediation. While both are forms of alternative dispute resolution, there are important differences.
First, arbitration is usually binding, while mediation is not. Thus, under arbitration, an arbitrator hears a case like a judge would. The parties each present their evidence, and the arbitrator makes a final decision to which both parties must adhere – no matter the result.
In mediation, on the other hand, the mediator does not issue a ruling or decision. Rather, the mediator is trained to assist the parties in presenting and discussing their positions with an eye toward settlement. If the mediation is successful, the case is resolved. If the mediation is not successful, the parties continue with their litigation.
How Is the Mediator Chosen?
The parties usually work together to choose a mediator. In some instances, when the parties cannot agree, a judge or mediation service may determine who will serve as the mediator. Most mediators are lawyers, but that is not always required.
It’s important that the mediator not have prior involvement with either party. In personal injury cases, it’s helpful to have a mediator who is familiar with personal injury litigation.
Benefits of Mediation
Mediation has a number of benefits. First, it can be scheduled and completed much more quickly than a case can work through the legal system. It can also reduce many expenses associated with litigation. For example, expert witnesses will not have to be paid to come to trial.
Additionally, mediation allows parties to work collaboratively to resolve a case and avoid the stress of litigation. The mediation is conducted in an office, rather than a courtroom, creating a more relaxed environment. While experienced trial lawyers are familiar and comfortable with going to court, the idea of contested litigation produces great stress for many clients.
Finally, there really is little to lose by attempting to resolve a case through mediation. If it fails, the parties may still rely upon the court system and conduct a trial.
Limitations of Mediation
There are a few circumstances that can limit the effectiveness of mediation. One arises when either party is not properly prepared for the mediation. Unless both parties have gathered most of the evidence they will need at trial, they will feel a level of uncertainty that makes it difficult to settle. Therefore, most mediations occur after a reasonable amount of discovery has been conducted.
Another problem arises if one of the parties does not have adequate settlement authority. For example, if an insurance company will pay any settlement on behalf of a defendant in a personal injury case, the defense attorney must have authority from the insurance company to settle, or a representative of the insurance company must be present. Otherwise, the process will fail.
Finally, some parties worry that they may give too much information to the other side that can be used against them if the case goes to trial. A good lawyer can help a party make sure this doesn’t happen.
In the final analysis, we believe that mediation can be an effective tool to resolve litigation. It’s a chance for parties to “captain their own ship” by settling their case. And if a settlement isn’t reached, the case can continue through the litigation process.
Call with Questions
If you’ve been injured due to the negligence of another, you may have questions about your case, as well as legal procedures like mediation. The experienced personal injury attorneys at Nelson MacNeil Rayfield will be glad to answer them. We’ve relied on mediation and trials many times to hold negligent parties responsible for their actions.
In the end, holding wrongdoers legally accountable is the best way to protect all Oregonians from negligent behavior. Please call us.