Will My Injury Case Go to Mediation?

The U.S. legal system is continuing a slow but steady movement away from the expensive, stressful, and time-consuming civil court system as the primary way to resolve personal injury claims. Instead, people have been taking advantage of different types of alternative dispute resolution—particularly, mediation.

Personal injury lawyers and insurance companies recognize the value of mediation, and use it frequently. If you've reached an impasse in personal injury settlement negotiations, mediation may offer a good path toward resolution.

How Does Personal Injury Mediation Work?

In mediation, the parties involved in a dispute sit down with a neutral third person (the mediator) who is trained to help people come to a mutually satisfactory solution to their conflict. The mediator doesn't make decisions or even give opinions. If the parties themselves don't agree to a solution, they go back to where they left off before mediation. Also, nothing either party says during mediation can be used by the other party in later stages of the dispute.

Let's take a closer look at the basics of mediation.

Do I Have to Agree to Mediation?

Not usually. Until a dispute becomes an actual personal injury lawsuit, mediation is entirely voluntary; it only happens if both sides request it, and a settlement of the dispute through mediation is reached only if both sides agree to it.

But if your injury case reaches the lawsuit process, the judge in your case might require that you and the other side at least attempt mediation at some point.

Who Pays for Mediation of a Personal Injury Case?

The cost of mediation is usually split equally between the two sides. Most mediators work under an hourly fee, which you can expect to come in anywhere from $150 to $500. Learn more about the costs of mediation.

What Happens in Personal Injury Mediation?

The process is pretty informal, especially when compared with the court system. The purpose of mediation is to let each side to have its say without the burden of sticking to special legal procedures, and without fear that if they say the wrong thing they can "lose" in the dispute.

Mediations in personal injury cases follow a basic structure, though they vary slightly among individual mediators. Typically:

• each party speaks to the mediator in the presence of the other party
• each gets to speak directly to the other party with the mediator facilitating the interchange, and
• each gets to speak alone to the mediator.

The mediator then uses the information gathered from the parties—without revealing what either party has said to the mediator in private sessions—to coax each side to budge off of their original position enough so both can reach an agreement. There are no restrictions on what can be said, or on how facts and opinions are presented, and the parties need no special training to make good use of the mediation.

Learn more about the "six stages" of mediation.

How Do I Find a Mediator for a Personal Injury Case?

Mediation may be available from a number of sources.

Neighborhood or community dispute resolution centers can be found in many cities and towns. These are usually staffed mostly by volunteers who are trained in dispute resolution, though they're not professional mediators and typically don't have legal experience. These centers mostly handle disputes between neighbors or cohabitants, landlords and tenants, and small businesses or contractors and consumers. Most mediators in these centers don't have experience with personal injury claims against insurance companies.

Professional mediation services are staffed by full-time mediators with dispute resolution experience and a legal background. These are often lawyers or retired judges. They charge substantial fees (often several hundred dollars for each party for a half-day session), and handle many different types of mediation, most often involving business or property disputes. Many of them have experience with personal injury claims.

Independent mediators are practicing or retired lawyers, sometimes retired judges. Some have experience mediating personal injury cases; many of those who do also handle personal injury cases as lawyers, representing either injured parties or insurance companies. But their experience typically comes at a high price—usually $200 per hour and up.

What Are the Pros and Cons of Mediating Your Personal Injury Case?

If you've reached an impasse when negotiating with the insurance adjuster, there are a number of benefits (and a few possible drawbacks) to using mediation as a way to break the stalemate.

Benefits of Mediating

Mediation has several potential advantages. It allows you to sit in the same room with the adjuster, which puts a human face (yours) on a claim that's otherwise just a file on the adjuster's desk, a few emails, and (at most) a voice on the phone.

You don't need to bring any documents or arguments you don't already have. And you get a third person (the mediator) to encourage a break in the deadlock. Mediation can also be much faster, easier, and less expensive than the alternatives of hiring a lawyer or even going to small claims court.

Drawbacks of Mediating

There are also barriers to mediating a personal injury claim. Mediation in relatively simple matters, like most personal injury claims, usually lasts only a few hours. But those few hours can be very expensive if you use a professional mediator. And the alternative of an inexpensive community mediation service with experience in personal injury claims may be impossible to find near you. Also, it can sometimes be hard to get an insurance adjuster to agree to mediation because of the extra work it requires—including a personal appearance at the mediation session.

When Is It a Good Idea to Mediate a Personal Injury Claim?

Given these benefits and barriers, you might want to consider trying to mediate your claim if:

• you and the insurance adjuster are stalemated more than $3,000 apart in settlement negotiations
• the major sticking point is the extent of your injury and/or what degree each party was at fault for the accident, and
• there don't seem to be any negotiating moves left for you to make.

Under these conditions, it may be worth your while to investigate the mediation process, including whether an appropriate, affordable local mediator is available.

Can I Have a Lawyer at My Personal Injury Mediation?

If you've already hired a personal injury lawyer to handle your case, you can always have them represent you at the mediation. But if you don't have a lawyer yet, that doesn't mean you need to rush out and hire one before a mediation. Learn more about when you might need a lawyer for your mediation, and get tips on finding the right personal injury lawyer.

For everything you need to know about resolving an injury claim, including the ins and outs of mediation, get How to Win Your Personal Injury Claim, by Joseph L. Matthews (Nolo).