Here’s the scenario: You have a lawyer and a lawsuit has been filed on your behalf regarding a car accident you were involved in last year. Your lawyer just contacted you and said the court ordered mediation in your case and there is a mediation coming up in a few weeks.
What exactly does this mean?
As part of our ongoing Legal Education Series, we thought we’d offer some expert insight from the personal injury attorneys on our team at Murphy & Prachthauser. Most people have never heard of mediation and do not know exactly what to expect. The purpose of this article is to familiarize you with the process and prepare you for an upcoming mediation.
1. What is Mediation?
Mediation is an alternative dispute resolution process wherein a neutral third party, the mediator, facilitates a discussion between the parties to a lawsuit to promote the voluntary resolution of disputes before trial. See Wis. Stat. § 904.085 (1).
Mediation is different from trial in the sense that mediation is an informal process and trial is a formal process. In personal injury mediation, it is most common to have the plaintiff and his or her lawyers in one room and the defense counsel and insurance adjuster in the other room. The mediator then moves between the rooms in hopes of bringing both parties toward common ground in order to resolve the lawsuit before trial.
Unlike trial, there are very few rules for a mediation. In a mediation, each party provides the mediator with materials regarding the case to review. Then, once the discussions begin with the mediator, the mediator is required to keep information confidential unless the parties agree to its disclosure. Furthermore, offers of settlement and discussions regarding settlement are not admissible at trial, which helps promote cooperation at mediation. Wis. Stat. § 904.085 (3)(a).
Another difference between trial and mediation is that at a mediation, the mediator leads the discussion, but has no power to make decisions regarding the case. The mediator cannot order either party to settle. At trial, the judge has power and influence over the outcome of the case.
One additional difference between mediation and a trial is that the parties have control over the outcome in a mediation. In a mediation, the parties make the decision on whether to resolve the dispute prior to trial. On the other hand, at trial, twelve jurors make the decision on the outcome of the case and the parties have no control over the result. At mediation, the parties are also fully aware of the amount of money which will be awarded to the plaintiff and how much money has to be paid back. At trial, the jury is not told the effects of their verdict and is not told that the plaintiff may not receive the entire amount of the damages they award.
Mediation is not always successful, however, over the past decade, it has become more common for lawsuits to resolve at mediation than proceed to trial. Mediation merely provides both parties with an additional opportunity to resolve the case before trial.
2. When is Mediation Used in a Lawsuit?
Once a lawsuit is filed, mediation is often ordered by the court at the scheduling conference. The court often orders mediation to be completed after discovery is completed and before the pre-trial conference. Mediation is usually only successful if both sides have all the information possible regarding the subject of the lawsuit. As such, an early mediation may not prove worthwhile. Oftentimes, mediation is the last step before a case proceeds to a pre-trial conference and then to trial.
3. Who is Involved in Mediation?
The main parties involved in a mediation are the plaintiff, the plaintiff’s attorney, the defense attorney, an insurance adjuster from the defendant insurance company, and the mediator. As previously mentioned, the mediator is chosen by both parties to lead a discussion in hopes of reaching a resolution. The plaintiff and his or her lawyers will be in one room and will have the final authority to make a decision on whether a case is settled at mediation. In the other room, the mediator usually speaks with defense counsel and an insurance adjuster from the defendant insurance company. In addition, some parties may be available by phone in the event a case resolves. For example, if a health insurance company paid some of the bills for the plaintiff’s injuries, they may have a right to be paid back by the defendant from the proceeds of the settlement. Usually, representatives of the health insurance companies are put on notice of the mediation and will only become involved if a case settles. These are typically the only parties involved in a mediation.
4. What is the Goal of Mediation?
The goal mediation is to bring the parties together to end the dispute by agreeing to settle the case voluntarily before trial.
5. Why does Murphy & Prachthauser excel in these circumstances?
The attorneys at Murphy & Prachthauser excel at mediation because they prepare every case as if it is going to trial. This results in a tremendous benefit at mediation because the attorneys are prepared, the clients understand the relative values of their case, and if the offer by the defendant insurance company is not adequate, the lawyers at Murphy & Prachthauser will not shy away from a trial.
Many lawyers from well-known personal injury firms prepare a case for settlement and will settle every case without going to trial. The mediator and opposing counsel know these firms will do anything to settle and offer low amounts knowing that they will settle regardless of the amount. In contrast, both the mediator and defense counsel know that the lawyers at Murphy & Prachthauser are not afraid of trying the case and the defendant will have to offer a reasonable amount in order to resolve the case before trial. Preparation and hard work leading up to the mediation helps the our team of experts receive the best results for clients at mediation.
At Murphy & Prachthauser we practice law the way it should be practiced – motivated and equipped to do our best for you. We take pride in being good lawyers who help people.
If you have a case you would like to speak to a lawyer about, please complete a free case evaluation and get an experienced team working on your behalf.