While most car accident injury cases are handled (and settled) as car insurance claims, at some point the mediation process might be a good "alternative dispute resolution" option. Let's discuss how mediation works, and what you can expect if your injury claim heads in this direction after any kind of traffic accident.
Learn more about different kinds of alternative dispute resolution, including mediation, arbitration, and collaborative law.
In the context of a car accident claim, mediation is a process in which a trained dispute resolution specialist (the "mediator") helps the parties try to reach a settlement of some or all injury and vehicle damage claims resulting from the crash.
Usually, one or more drivers' car insurance companies and their respective lawyers are involved in the mediation, as the mediator works with both sides to resolve key issues like:
These days, most courts will strongly encourage mediation of car accident cases at some point after a car accident lawsuit has been filed. But courts don't usually order parties to participate in mediation (except in small claims court).
You don't have to wait for the judge's suggestion of mediation. You can participate in mediation before you take your car accident case to court. If both sides agree to go to mediation, that may be a good sign that a car accident settlement can be reached without the time and expense of court.
Mediation is different from arbitration of a car accident case on a number of key fronts. The biggest difference is that an arbitrator will make a decision after considering both sides' arguments, and that ruling is binding on the parties. Mediators don't issue rulings; they try to get the parties to come together and reach a settlement.
Most car accident claim mediations follow a similar pattern.
Normally, mediation begins with a discussion of the ground rules. A big consideration here is that statements made in the mediation won't be admissible in court. This rule frees everyone to discuss settlement of the car accident case without fear that something they say will come back to haunt them if there's no settlement and the case goes to court.
You'll probably be required to sign a written mediation agreement which outlines the process and indicates your consent to follow the rules.
After the preliminaries, the claimant is typically given the first chance to explain their view of the case, including on key issues like liability for causing the crash, and the nature and extent of resulting losses ("damages"). The claimant can also make a proposal of terms for settlement.
Next, the opposing party is given the same chance—explaining their side of the case and the terms on which it should be settled.
After the positions of all parties are "on the table," there may be further back-and-forth discussion by the group as a whole. At some point the mediator will likely separate the parties into different conference rooms and become a "shuttle diplomat," speaking privately with one side and then the other, and carrying new proposals back and forth.
Normally, the mediator helps each party see the other side's view of the case, usually in the private meetings. For example, the mediator might:
If the shuttle method is being used, the group may reconvene any time the mediator thinks it makes sense to get everyone back in the same room.
Either as a group, or through shuttle diplomacy, the discussions continue until there is an agreement, or until it's clear that there won't be a resolution. In a typical car accident case, you may get a pretty clear sense within an hour or two whether you'll be able to reach an agreement.
Learn more about the different stages of a typical mediation.
If your car accident case is heading for mediation, there are a few things to keep in mind before and during the process.
Make sure the decision-makers are at the table. You don't want to reach what looks like an agreement only to learn that the insurance adjuster sitting across from you has to check with their "manager" before finalizing the deal. Make sure the person in the room with you has complete authority to resolve your claim.
Remember that the mediator has no authority to force an agreement. Mediators can't require either party to do anything. Instead, they facilitate. They can make recommendations. They try to bring the two sides together. Even if the mediator thinks that you're completely reasonable in your "demand" and that the other party isn't being rational, the mediator can't force the parties to do anything.
Don't mediate unless you feel the other side is motivated to settle. Make sure you get a sense that the other driver (or their insurer) genuinely wants to resolve the claim, not run up your expenses or engage in stall tactics. Of course, the motivation factor works both ways. You shouldn't bother going to mediation unless you want to make a sincere effort to reach an agreement.
Mediation usually costs money. You may be able to use a free community mediation program if there's one in your area, but more likely your mediation will come at a price. Again, don't waste your money at mediation unless you believe that the insurance company you're dealing with wants to resolve the claim. Learn more about how much mediation might cost.
Get more tips for a successful mediation.
If you already have an attorney representing you in your car accident claim, talk to them about whether mediation might be a good option in your situation. You don't need an attorney to participate in mediation, but in some situations, having a legal professional on your side can be a difference-maker. Learn more about: