For decades now, the U.S. legal system has seen a slow but steady movement away from the expensive, stressful, and time-consuming adversarial civil court system as the primary means of resolving personal injury claims. Instead, people have been taking advantage of different types of alternative dispute resolution—particularly, mediation.
Even personal injury lawyers and insurance companies now recognize the value of mediation, and use it frequently. If you have reached an impasse in personal injury settlement negotiations, mediation may offer a sensible path toward resolution.
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 of their conflict. 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. The mediator doesn’t make decisions or even give opinions. If the parties themselves do not 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.
The cost of mediation is usually split equally between the two sides. The process is informal; the purpose is to allow each side to have its say without the burden of 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:
The mediator then uses the information gathered from the parties—without revealing what either party says in confidence—to coax each side to change position sufficiently so both can reach an agreement. There are no restrictions on what can be said or how facts and opinions are presented, and the parties need no special training to make good use of the mediation.
Mediation may be available from one of several sources:
Neighborhood or community dispute resolution centers can be found in many cities and towns. They are staffed primarily by volunteers who have some training in dispute resolution but who are not professional mediators and do not have legal experience. These centers usually charge only small fees, if any. They mostly handle disputes between neighbors or cohabitants, landlords and tenants, and small businesses or contractors and consumers. Most mediators in these centers do not, however, have experience with personal injury claims against insurance companies.
Professional mediation services are staffed by full-time mediators who usually have both mediation experience and a legal background. They 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—$150 to $300 per hour and up.
If you have reached an impasse when negotiating with the insurance adjuster, consider mediation as a way to break the stalemate. 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 is otherwise just a file on the adjuster’s desk, a few documents, and a voice on the phone.
You need no documents or arguments for mediation that you do not already have from the claims process. And you get a third person (the mediator) to encourage a break in the deadlock. And mediation can be much faster, easier, and less expensive that the alternatives of hiring a lawyer or going to small claims court.
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 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.
Given these benefits and barriers, you might want to consider trying to mediate your claim if:
Under these conditions, it may be worth your while to investigate the mediation process, including whether an appropriate, affordable local mediator is available.
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).