Mediation has been defined (legal definition) as the attempt to settle a legal dispute through active participation of a third party (mediator) who works to find points of agreement and make those in conflict agree on a fair result. Basically, this is correct. Whether mediation is held before actually commencing a lawsuit or after, this is a great vehicle to find common ground and compromise. Clients often find the process a bit intimidating. Drawing from experience, clients are sometimes upset, as they often feel attacked by overzealous defense attorneys. Caution! Mediation is often our initial opportunity to hear how the other side views your case and would defend the cause of action if it was to proceed to trial. A skilled trial attorney will warn their clients prior to mediation that they can anticipate the defense lawyer will address every last weakness or perceived issue with the case/claim in their opening statement.
In mediation you generally have the plaintiff attorney, plaintiff (injured party), defense attorney (hired by the insurance company) and the adjuster for the insurance company. We can call label such individuals as the “interested parties” as they all have an interest in the outcome of the mediation and the case itself. The only disinterested party is the mediator. The mediator is usually an attorney that has many years of experience in dealing with the legal issues on either the plaintiff, defense or even both sides throughout their respective legal career. They have basically heard it all. Thus, it is rare that a set of facts is unique to the mediator. Mediators come in all shapes and sizes. They range from being effective in moving a case towards resolution and actively working both sides in such effort to playing little role whatsoever. An effective mediator will have their calendar full for two months out and make a very good living in actively resolving legal disputes others problems. From experience, an ineffective mediator is always available and for good reason.
At the beginning of the mediation the plaintiff attorney will make an opening statement. Sometimes bells and whistles are added in the form of demonstrative aids, (i.e., videos, charts, power point presentations, etc..) to illustrate the injuries the victim has suffered from or lay witnesses who may be testifying at trial. The threat of moving past mediation and setting the case for trial play a huge role in whether the case resolves at mediation or shortly thereafter. Without the potential of a case advancing to trial and the threat of such looming over the insurance carrier; the applicable insurance carrier will rarely offer or come to terms with paying the realistic value (i.e, “mediation value”) of the claim. If the adjuster is aware that the particular plaintiff lawyer has not tried a case to verdict or does not actively litigate their cases, they know they are getting off cheap. I use the words “mediation value” as a settlement is truly a compromise by all interested parties to the case. In a successful mediation, both sides will depart feeling a bit slighted. The insurance adjuster will feel they paid too much and the plaintiff will often feel that they did not receive enough compensation. This is just the nature of the beast. It’s a small price you pay for not leaving the outcome of your case in the hands of the jury…unless the case is just that good that you have no qualms placing your trust in a jury and the benefit outweighs the risk. In such cases mediation is merely a formality that courts require before setting your case for trial.
Christian Myer is a St. Petersburg personal injury attorney and handles first and third party injury claims stemming from an auto accident, motorcycle accident, wrongful death, insurance carrier bad faith, as well as premises liability. Further, Christian has earned a strong reputation in his handling of traumatic brain injury claims. He has served as an Adjunct Professor of Law at Stetson University College of Law where he teaches trial advocacy.
Dolman Law Group
800 North Belcher Road
Clearwater, FL 33765