Yesterday’s personal injury mediation blog post discussed personal injury mediation preparation. Now that we’ve set our best foot forward, here’s a summary of what will happen on the day of the actual mediation. Clear your calendar because mediations are slow and time-consuming events. If the mediation doesn’t end within an hour (i.e. it becomes obvious that one side doesn’t want to settle, or doesn’t have the authority to settle for a reasonable amount), my experience is you will be at the mediation center for at least 4-5 hours, if not the entire day.
Typically, you will meet your attorney at a mediation center, which will have a kitchen with coffee, soft drinks and snacks. You will first meet in a room where you can speak privately with your attorney. You’ll then go to a larger conference room where you will sit next to your attorney and opposite defense counsel and usually an insurance adjuster. The mediator will sit at the head of the table.
The mediator will introduce themselves, tell you about their experience handling personal injury cases, that they are not a judge (i.e. they cannot force you into anything), that nothing presented or discussed during the mediation will be admissible in a court of law, and that the main benefit of mediating a case is that of certainty. Anything can happen when a jury is involved. You take a substantial risk in failing to compromise at mediation because at or after trial (a) you may lose the case outright and (b) you may be required to pay defense counsel’s fees. But if you settle, you (c) know exactly the result and (d) you would get money sooner (within weeks of settling at mediation) as opposed to waiting months or years before getting to trial.
Then your attorney will give a short opening statement. Beforehand, you and your attorney will decide if you should say anything during this opening statement. If I have a client that is prone to dramatic angry outbursts; or does not communicate their thoughts well; or is extremely shy – I will usually advise my client to stay silent. But, if the client is polite, articulate and appropriately emotional, I may decide to let them speak if they wish (what is said will be planned beforehand to avoid the client accidentally revealing information deleterious to their case) – about how the injury has affected their life. This can humanize, and set my client apart, to an insurance adjuster who is simultaneously handling potentially hundreds of other files at the same time.
Afterwards, the defense counsel will give their short opening statement. Their purpose will be to highlight your case’s weakesses and, sometimes, to intimidate you. While I will not interrupt a defense attorney pointing out our case’s shortcomings (that is his/her job), I will cut them off if they are rude, treat my client with disrespect, or engage in other inappropriate behavior.
Finally, the parties will separate. You and I will go into our own room and the other lawyer and adjuster will go into another. The mediator will then bounce back and forth between rooms conveying messages and offers/counteroffers in an attempt to find some acceptable middle ground.