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What is Mediation? | Personal Injury Attorney Vancouver WA

What is Mediation? Mediation is a form of alternative dispute resolution available to parties and can help them in negotiation of their differences, retain Personal Injury Attorney Vancouver WA. Unlike arbitration, mediations are never binding. You can walk out if you do not like what is happening, unless your case is being mediated by a judge, which is uncommon. Usually, the mediator is an attorney experienced in personal injury cases who is selected by the agreement to the parties. It is not uncommon for the mediator to be a retired judge. Mediators are very informal.

What is Mediation? | Personal Injury Attorney Vancouver WA

The function of a mediator is to act as a go-between for the warring parties. The mediator’s job is to facilitate a settlement. To that end, the mediator can be expected to offer her or his opinion as to the acceptability or merits of what one party is offering to the other, and to explain to the parties what they may not understand. Your attorney is always present at the mediation and may control your interaction with the mediator.

Pre-Covid, the parties always met in the same building, usually in separate rooms. In these days of Covid, typically everyone appears separately on a computer screen in their separate locations, where they can see everyone else on the computer. If my clients are not equipped to do this, I usually operate from my computer in my office and my client is set up on a computer in one of our conference rooms. When the time comes for me and my client to meet alone, or meet separately from the defendant with the mediator, the mediator usually has the technology to separate out the parties into separate “rooms,” which are nothing more than taking the other party off the computer screen and closing it to them. I get a kick out of the fact that Zoom started in Vancouver and remains based here.

In personal injury litigation, it is common for the mediator to first meet with the plaintiff so that the plaintiff can explain how the plaintiff wants the mediation to come out. This usually means that the plaintiff tells the mediator how much money the plaintiff will settle for. After the mediator has heard the plaintiff out, the mediator typically meets with the defendant and the defendant’s attorney to explain and discuss the plaintiff’s offer. Usually, the mediator leaves that meeting with a counteroffer for the plaintiff.

What is Mediation? | Personal Injury Attorney Vancouver WA

After that, it is common for the mediator to go back and forth between the parties until they arrive at a settlement. The may take the better part of a day or longer. If parties fail to arrive at a settlement, the mediation ends. However, it is sometimes common for the parties to reengage with the mediator by phone days or weeks later in attempt to come to an agreement, which does happen. I remember a mediation that I was in for a death case. When we failed to reach an agreement, the defense made a final offer for the mediator to communicate to us and then physically left the building where we were and headed back to their home location. In that case, we contacted the defense mediation team in their car after they had left the mediation and obtained their agreement to pay $250,000 over their last offer and the case settled while we talked to the defense team that at that moment was on the freeway. Mediations are very informal.

Further, mediators talk to the parties in private, out of hearing of the other parties, unless it agreed that all the parties meet jointly with the parties for some reason (hardly ever). If you ask a mediator not to relate something that you tell the mediator, I have always had mediators honor that request. However, except for that, mediators typically will tell the parties what anything that mediator wants to say to attempt to provoke a settlement.

I invariable I agree to mediate a case. The parties share the price unless the defense agrees to pay it. And we have a lot to gain and nothing to lose. At a minimum, if the case does not settle, we gain a much greater understanding of where the defense is coming from and what their theories of the case are, which is helpful to know if you must go to trial.

What is Mediation? | Personal Injury Attorney Vancouver WA

One last comment. You want to try and decide whether you are willing to mediate a case before you ever start negotiating with the other party, except to send them your initial demand for the sum you are proposing the settle at. If you fail to do that and go back and forth until you reach your bottom line, there will be no place to go in a mediation. When parties agree to mediate it is with the unspoken understanding that both parties will compromise to fashion a settlement. If you have previously negotiated to your bottom line, you will have no where to go in mediation and you will regret ever agreeing to participate in a mediation.

Sometimes I will tell the other party long before we even consider mediating that we can either negotiate seriously amongst ourselves or we can mediate the case, but if we try hard to settle and fail, I will not be interested in mediating. At other times I will stake out and hold to a position that gives me a lot of room to compromise if we mediate. But you do not want to be trapped with no where to go when you mediate. If you are going to mediate, you must be prepared to compromise or you will be wasting yours and everyone else’s time.

A final note is that you need to establish that someone will attend on behalf of the insurance carrier who has authority to be present and negotiate in a settlement. You want to avoid negotiating with a defense attorney and the insured only for them to have to call an adjuster on the other side of the country who has not participated in the mediation for authority to make a settlement that you have already arrived at with everyone else present. In the age of Zoom, there is simply no excuse for a representative of an insurance company not to be present to mediate who has authority to settle. If the carrier is unwilling to do that, you are wasting your time in a mediating.



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