I am mediating a case this afternoon on a car crash from 2018. This blog post discusses mediation in general. Keep in mind that every single case is different so every mediation is different. There really is no average mediation.
Location And Parties
A year ago we would all go to a law office and sit down in front of a conference table. This past year all mediations have been taken place via remote videoconference. In either case, your lawyer will show up and do most of the talking (if you prefer). The other side will usually bring a defense lawyer and an insurance adjuster. Occasionally the Defendant will show up because their personal assets are at stake.
If the parties agree, both sides will briefly lay out how they see the case. No more than five minutes per side is normal (depending on the complexity of the case). The strengths and weaknesses will be discussed. If liability is not an issue that will be laid out.
I tell my clients beforehand they are going to hear things they don’t like. In one ear and out the other. You have to understand that sometimes lawyers are under orders or pressure to show the adjuster they are on top of the case. I don’t care what anyone says in an opening statement. I care about the end result of the mediation.
Demand And Offer
You will normally be split into two separate rooms. The mediator will then go back and forth between the rooms. His or her job is to relay the position of each side and put forth why one side might consider a certain amount to resolve the case.
DO NOT BE SURPRISED if you are offended by the first number the other side puts on the table. This is very normal. If you take this number personally usually results in a bad mediation. The end number is all that counts. And by end number I mean the amount of money in your pocket at the end of the day. It usually takes many moves and a few hours to get there.
Both sides will want to eliminate risk. The Plaintiff will want to get rid of the chance a jury comes back with a small sum of money. Your lawyer will also spend money to get the case to trial. That money is taken out of your pot of money at the end of the case. The Defense wants to eliminate the risk of a jury awarding a large sum of money after costs and defense lawyer fees are added to the equation.
Get The Mediator To Like You
Here is a no-brainer piece of advice: if the mediator likes and believes you than they will go to bat with the other side. If you are rude to the mediator it probably won’t end up with a positive result.
It is rare you will walk out of a mediation thinking I got every single thing I wanted. More often you walk away thinking money was left on the table. The other side thinks they paid too much money to resolve the case. In either case IF a mediation is successful both sides know the case is resolved. There is value to this.
If Mediation Does Not Work
An unsuccessful mediation will be reported to the Court. Upon learning of that information the court is likely to set a trial date. Either lawyer can ask for a trial date as well (assuming they do not already have one). Some judges mandate mediation. Other judges will not force you. Cases are now taking closer to 1-2 years to get a trial dates in Kentucky depending on the judge.
Can We Still Negotiate?
It is not uncommon for the parties to continue negotiating after a mediation. Failure to reach a resolution is not a be all end all scenario. I have resolved cases post mediation but usually both sides know if the numbers are in the same ballpark and cases can go to a second mediation.
A successful mediation will be memorialized in some sort of document. The mediator will draw up paperwork indicating one side is paying money and the other side is accepting the money to resolve the case. Specialized agreements like confidentiality clauses will also be noted. More formal paperwork will follow from the defense lawyer along with a check and agreed order of dismissal.
If you have questions about mediation email email@example.com or call Brian Dettman at 502-444-HURT.
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