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.
How a Mediation Session Typically Unfolds
In Wisconsin personal injury cases, mediation is a structured yet private process designed to help both parties reach a voluntary settlement. The parties are intentionally kept apart throughout the day, meeting in separate rooms. The mediator moves between rooms to exchange information, offers, and counteroffers, and to help bridge the gap between positions.
Pre-Mediation Preparation
About one to two weeks before mediation, attorneys meet with their clients to review the case in detail. This includes discussing liability, damages, possible weaknesses, and developing a fair settlement range. Together, they agree on a specific demand amount, which is then communicated to the defense in advance.
This advance demand is crucial, it allows the insurance company to set its expectations and ensures that decision-makers with full settlement authority are available during mediation.
Before the mediation date, both sides submit confidential mediation statements to the mediator. These packets summarize key arguments, evidence, and documents such as photographs, medical records, police reports, and expert opinions. By the time mediation begins, the mediator is already familiar with the facts, legal issues, and each side’s position.
The Mediation Day
Clients typically arrive about fifteen minutes early to address any last-minute questions. The mediation itself does not include joint sessions or opening statements. In Wisconsin, the parties rarely, if ever, see each other except by chance in the hallway or elevator.
The mediator begins by meeting privately with each party and their attorney. During these sessions, the mediator may discuss how the client might be perceived by a jury, explore settlement goals, and evaluate the strengths and weaknesses of each side’s position. The mediator then alternates between rooms, sharing offers, demands, and insights designed to move the case toward resolution.
Negotiation and Resolution
The process of exchanging offers and counteroffers continues throughout the session. The mediator helps each side understand the other’s perspective, narrowing the gap until a compromise may be reached. If a settlement is achieved, all parties sign a short written mediator’s agreement summarizing key terms, such as settlement amount, payment timing, confidentiality, and responsibility for outstanding medical liens or reimbursements.
If an agreement is not reached that day, the mediator often remains engaged for another week or two to see whether continued negotiation can result in resolution.
Conclusion
When a settlement is finalized, the court is notified, and the case is dismissed. This concludes the mediation process and formally ends the lawsuit.
Is a Mediation Agreement Binding?
One of the most common questions people have about mediation is whether the outcome is legally binding. The short answer: it depends on what happens after the mediation concludes.
- Verbal Agreements Are Not Automatically Enforceable
- If the parties only reach a verbal understanding during mediation, it’s considered a non-binding agreement in principle. The mediator may summarize the points of consensus, but until they are documented in writing and signed, no legal obligation exists.
- Written Settlement Agreements Create Binding Obligations
- When parties reach a full or partial settlement, the mediator or attorneys will typically prepare a written mediation agreement (sometimes called a Mediation Agreement or Settlement Agreement).
- Once all parties sign the written agreement, it becomes a legally binding contract, enforceable like any other legal agreement.
- Court Approval May Be Required in Certain Cases
- In civil lawsuits that are already filed with the court, the signed mediation agreement can be submitted to the judge for approval.
- Once approved, the court may enter the settlement terms as a court order or judgment, making the agreement immediately enforceable under law.
- This is especially common in personal injury, family law, or employment cases where the court maintains oversight.
- If Mediation Does Not End in Agreement
- When no settlement is reached, the mediation remains confidential and non-binding. Often the mediator will stay involved for a week or two to continue to try to resolve the matter. If there are some sticking points, they attempt to reach a compromise on those. The case simply proceeds to the next stage of litigation, and nothing said in mediation can typically be used in court.
In summary:
A mediation itself doesn’t automatically produce a binding result, but once the settlement is reduced to writing, signed by all parties, and (if applicable) approved by the court, it becomes a legally enforceable agreement.
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.
When Mediation Works and When It Might Not
Mediation can be an efficient, less stressful way to resolve a legal dispute, but it’s not always the right fit for every situation. Understanding when mediation is most effective (and when it may fall short) helps set realistic expectations for all involved.
When Mediation Works Well
Mediation tends to be successful when:
- Liability is largely agreed upon, but damages are disputed.
For example, in a car accident case where both sides agree who was at fault but differ on the value of the claim.
- Parties want to avoid the cost and uncertainty of trial.
Mediation offers a chance to reach a fair settlement without months of additional legal fees or court appearances.
- There’s a willingness to compromise.
When both sides come in open to discussion, not entrenched in “all or nothing” positions, mediations often end in a signed agreement.
- Emotional or ongoing relationships matter.
In cases where preserving respect or communication is important (e.g., between an injured person and an insurance representative), mediation provides a structured, respectful process.
When Mediation Might Not Be Appropriate
There are situations where mediation may not be effective or fair, such as:
- Unclear or disputed facts that require evidence or testimony.
If the core issue hinges on facts that need to be established through discovery, expert reports, or a jury, mediation may be premature.
- One or both sides are unwilling to negotiate.
If a party participates only to “check the box” rather than engage in genuine discussion, mediation is unlikely to succeed.
- Safety or emotional distress issues.
Particularly in cases involving trauma, mediation should only proceed if the injured party feels emotionally ready.
How to Prepare for Your Mediation
Mediation works best when you come prepared, both practically and mentally. Here’s a quick checklist to help you feel confident and ready for the process.
Bring the Right People
- Your attorney (if you have one):
In most personal injury mediations, your lawyer will attend with you to handle legal details, evaluate offers, and protect your interests.
- A decision-maker:
If an insurance representative or family member has settlement authority, they should be available in person or by phone to finalize any agreement that day.
Gather Important Documents
You don’t need to worry about gathering or organizing paperwork for mediation, our team takes care of all of it. Before mediation, we compile and submit a detailed, confidential packet to the mediator that includes everything needed to present your case effectively. This typically covers medical records and bills, documentation of wage loss, repair estimates (if applicable), insurance correspondence, and key evidence such as photos or expert opinions.
- Medical records and bills related to your injury
- Wage loss documentation (pay stubs, employer statements, or tax returns)
- Repair bills or estimates (if applicable)
- Insurance correspondence or settlement letters
- A brief personal summary of how the injury has affected your daily life
We also prepare a clear summary explaining how your injuries have affected your daily life, ensuring the mediator fully understands both the facts and the personal impact of your case.
By hiring us, you can focus on your recovery while we handle all the details behind the scenes to give your case the strongest possible presentation.
Prepare Your Mindset
- Be open-minded.
Mediation is about exploring solutions, not “winning” or “losing.” Expect some compromise.
- Be patient.
Mediations often involve long breaks while the mediator meets privately with each side.
- Be honest and respectful.
Your credibility matters. Clear, calm communication helps the mediator advocate effectively for a fair resolution.
- Focus on resolution, not revenge.
The goal is closure and a settlement you can live with, not to relitigate the entire case.
Timing Tip
- Half-day mediations usually last 3–4 hours.
- Full-day mediations may last 6–8 hours (or more), including breaks and private sessions. Plan accordingly.
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.
Who Are Mediators and How Are They Chosen/Paid?
Mediators play a central role in helping both sides reach a resolution, but many clients wonder who these professionals are, how they’re selected, and what mediation costs typically look like in Wisconsin.
Typical Mediator Backgrounds
In Wisconsin personal injury cases, we typically select mediators who are highly experienced defense attorneys. These individuals have tried many cases and spent most of their careers representing insurance companies. Because of this background, they tend to carry significant credibility with insurance adjusters, an important advantage in reaching a fair settlement.
We also take care to choose a mediator who is well suited for each client and case. Our goal is to ensure that our clients feel comfortable and confident throughout the mediation process. By selecting a mediator who understands both the legal and personal aspects of the case, we create the best possible environment for achieving a successful resolution.
- Understand both legal liability and damages issues
- Evaluate evidence and negotiation positions
- Communicate effectively with lawyers, clients, and insurance representatives
Many mediators also complete specialized training in negotiation, conflict resolution, and ethics, and are often members of professional mediation organizations such as the Wisconsin Association of Mediators or Wisconsin Association for Justice.
How Mediators Are Selected
- By agreement of the parties:
In most cases, the plaintiffs and defense attorneys jointly select a mediator they both trust to be fair and effective.
- Court-assisted selection:
If the case is already in litigation and the parties can’t agree, the court may appoint a mediator or provide an approved list.
- Based on experience and reputation:
Attorneys often choose mediators known for their expertise in specific case types (e.g., auto accidents, medical malpractice, product liability).
(Tip: In personal injury cases, it’s common for the attorneys to recommend mediators who have strong track records of resolving similar disputes.)
Who Pays and What It Costs
- Mediation fees are usually split evenly between both sides unless otherwise agreed.
- Typical rates in Wisconsin:
- $250–$500 per hour, depending on the mediator’s experience and reputation
- Half-day mediations: approximately $750–$1,500 per party
- Full-day mediations: approximately $1,500–$2,500 per party
- Some mediators charge flat fees that include preparation and follow-up time.
- Fees are typically paid in advance and may be non-refundable if canceled within a short notice window.
Why Experience Matters
A skilled mediator doesn’t just shuttle offers between rooms — they help each side realistically assess their case, identify risks, and move toward a practical settlement. Choosing a mediator with the right background, credibility, and communication style can significantly improve the odds of resolving your case efficiently.
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.
PAAs:
- How long does it usually take to schedule a mediation after both sides agree to try it?
In most Wisconsin personal injury cases, mediation can be scheduled within four to six weeks once both parties agree and the mediator is selected. The timeline may vary depending on the mediator’s availability and whether all necessary documentation (medical records, discovery, expert reports) has been exchanged in advance.
- Can mediation happen before a lawsuit is officially filed?
Yes. Many personal injury cases go to “pre-suit mediation” before any formal court filing. This allows both sides to negotiate privately, avoid court fees, and resolve the claim faster. If mediation succeeds, a written settlement agreement is signed and the case never needs to enter the court system.
- What happens if one side doesn’t follow through with a signed mediation agreement?
A signed settlement agreement is legally binding. If one party fails to comply (for example, by not paying the agreed amount), the other party can ask the court to enforce the agreement. The court can then enter the settlement as a judgment, making it enforceable like any other legal order.
- Are mediations confidential in Wisconsin?
Yes. Under Wisconsin law, mediation discussions are confidential and cannot be used as evidence in court if the case doesn’t settle. This protection allows participants to speak freely, make offers, and explore options without fear that their words will later be used against them.
- Does the mediator make decisions or tell us what to do?
No. A mediator is not a judge or arbitrator — they don’t make rulings or force outcomes. Their role is to facilitate negotiation, help both sides understand their risks and strengths, and guide the parties toward a mutually acceptable resolution.
- What if we only settle part of the case in mediation?
Partial settlements are common. For example, you might resolve liability but leave damages or medical lien issues for later. The signed agreement will reflect which issues are settled and which remain open for trial or further negotiation.
- Can I bring a support person or family member to mediation?
Usually, yes — but it’s best to confirm with your attorney and the mediator beforehand. Family members can offer emotional support, but everyone present must agree to follow confidentiality rules and not interfere with the negotiation process.