Instead of Resolving my Personal Injury Claim by Trial, Should I Consider Mediation?

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Only a small number of personal injury claims are resolved by a trial.  Many more claims are resolved without a trial either before or after a lawsuit is filed.  Claims are often resolved by negotiation between the parties.  Increasingly parties use mediation to resolve all types of disputes, including motor vehicle accidents and other personal injury claims.

WHAT IS MEDIATION?

Mediation is a voluntary process that is guided by a mediator.  A mediator is a neutral person who works with the parties to resolve the dispute.  The mediator does not give legal advice to the parties.  A mediation is a meeting of the parties that usually includes their lawyers.  Mediation can take place before or after a lawsuit is filed.

The mediator meets with the parties and their lawyers and helps the parties talk with one another about resolving or settling the dispute.  A mediation usually begins with a joint meeting in which each side carefully listens to the other side present their story and the basis of their position.  Mediation includes agreeing to the confidentiality of the process.  The parties agree that nothing that is said during the mediation can be used against them by the other party in court.  This allows for an open and honest discussion.  The mediator does not make a decision.  The mediator assists the parties to communicate with one another.  During the mediation, the mediator can meet separately with the parties.  What is said in the separate meetings or caucuses is also confidential unless the party agrees that what the mediator is told in the separate meeting can be communicated with the other side.  If an agreement is made to settle the case, then the mediator will prepare an agreement stating the terms of the settlement.

WHY MEDIATE?

Timely:  A mediation can take place any time the parties agree to mediate.  As a result, the parties do not have to wait for a trial date to resolve the dispute.  This can save months if not years.

Cost Efficient:  A mediation session is usually much shorter than a trial and does not involve calling witnesses, which can be expensive.  The mediation can take place before extensive and expensive discovery.

Confidential:  What is said in the mediation is confidential.  It provides a place for parties to speak frankly with one another without the fear that something they say will be held against them later.

Control:  The parties are in control of the mediation.  At any time, a party can leave the mediation.  The mediator does not make a decision and the parties do not have to settle.  As a party, you are in control.

Successful:  The majority of personal injury cases in Virginia are settled through mediation and other voluntary negotiations.  There is no guarantee of settlement, but mediation has been proven to be a successful means of resolving personal injury disputes.

DO I NEED AN ATTORNEY IF I MEDIATE MY CLAIM?

There is no requirement that you have an attorney, but an experienced attorney can help you prepare for and participate in a mediation.  Many mediators are lawyers or retired judges.  The attorneys at Morin & Barkley LLP have represented many clients in mediations and several have served as mediators.  We believe that mediation can be an appropriate and efficient way to resolve your case without a trial.  Please contact us if you would like to talk to us about mediation.