What is mediation? And why is it important in civil cases?
Put simply, mediation is the process in which a neutral third party (the mediator), attempts to negotiate a settlement and or agreement between two or more conflicting parties that resolves one or more issues between the parties. But you may be asking yourself, when is mediation applicable? Who pays for mediation? Do I have to attend mediation? Is mediation right for me? What happens when mediation is over?
What cases require mediation?
It is easier to start with which cases do NOT usually mediate. In general, civil litigation cases all have the potential for mediation, while criminal cases do not. Whether your specific case will require mediation depends on several factors such as:
Cause of action (personal injury, arbitration, family law, etc.).
Did a Court/Judge order mediation as part of a Court order or pleading by a party.
Issues that need to be resolved between the parties.
In civil matters, it is a safe assumption to assume your case will be mediated at some point or another. In fact, over 90% of civil litigation cases will be mediated at some point during active litigation if the case goes on long enough. This is not a bad thing though! Mediation offers an opportunity to present a neutral third party with the strengths and weaknesses of each party’s cases, and to have that neutral third party determine what they believe the best settlement should be. It is important to remember that a mediator’s recommendations and opinions are not binding on any party, they are simply recommendations and opinions about how the specific case can or could resolve.
Who are mediators, and who will my mediator be?
Generally speaking, you will usually see lawyers or ex-judges with extensive experience and expertise in a particular area of law that is applicable to your specific case as an option for a mediator. For example, if you have a personal injury case that is based on a slip and fall, it would be a good bet to look into a mediator that has experience in that area of law, as opposed to a mediator with experience solely in construction defect cases.
When it comes to choosing a mediator, usually the parties, through their attorneys, will attempt to confer amongst themselves on choosing an agreed mediator that best suits the facts, location, and issues of your case. When attorneys cannot agree on a mutual mediator, it is common for a Judge to intervene and order a particular mediator to mediate your case.
Who is responsible for mediator fees?
Usually, each respective party is responsible for their own mediator fees. For example, let’s assume a mediator charges each party to a case $750.00 for a full day of mediation. In this scenario, each party is solely response for coming up with the money to pay for the mediator’s time. There are also situations where you can negotiate that the other party pay your mediator fees, but this is typically worked out through the attorneys.
What’s the process for a mediation session?
Let’s assume John (Plaintiff) and Sally (Defendant) are involved in a civil personal injury dispute involving a motor vehicle collision. They have hired Mr. Mediator to mediate their case. Usually, Mr. Mediator will begin mediation by introducing himself to everyone and then sequestering (separating) the parties and their lawyers into different rooms. Each party gets a separate room so that the mediator’s discussions with the parties are private. It’s not uncommon for the mediator to hear the Plaintiff’s side of the case first and then going to the Defendant and hearing their side of things. The mediator will then go back and forth between the parties, presenting the parties particular arguments and offering his input on the same. In this example, John and his lawyer believe that Sally is at fault for the collision, and that he has sustained $20,000.00 in medical expenses. He wants $45,000.00 to settle the suit. Sally and her lawyer believe that the collision was her fault but was very minor, and that John’s medical bills are exaggerated. She believes that evidence supports that John’s medical bills are actually closer to $5,000.00, and the case is worth no more than $10,000.00. Mr. Mediator listens to the evidence of both parties, and after several rounds of negotiation, offers a resolution that Sally pay John $35,000.00 to settle the suit. Mr. Mediator reasons that even though Sally believes the collision was minor, Sally also ran a red light when she struck John’s vehicle. Further, Mr. Mediator explains that the particular Judge involved in the suit does not like folks who run red lights. Mr. Mediator also explains that juries in the county where the case is pending rarely award more than $40,000.00 for car wreck cases. Neither party is bound by the mediator’s proposal to settle the suit, but the proposal is an attempt to reach a resolution.
A good rule of thumb for mediation is if you are unhappy, it is a good mediation! Mediation is a compromise, and usually no party gets exactly what they want when they go in, but they can usually live with the end result.
What happens if the parties settle at mediation?
If the parties have successfully agreed to resolve all their issues at mediation, the case is settled and the parties then work to finalize settlement paperwork and logistics. A successful mediation is one that resolves whatever specific issues the parties came to mediation to resolve. However, if mediation does not resolve all specific issues the parties have, then litigation continues.\ and any remaining issues are subject to a potential trial.
Texas Personal Injury and Civil Trial Lawyer
A Texas personal injury and civil trial attorney understands the serious and complex ramifications of being injured due to the negligence of another. Retaining a good personal injury civil trial attorney is your best and first opportunity to build a robust case, offers your best chance of obtaining the financial compensation to make you whole, and is the best way to hold the negligent people and corporations accountable for the damages they have caused you. If you've experienced a personal injury or believe you have a civil case in Dallas, Texas or its surrounding counties, the Law Office of Alton James III is prepared to fight for you. We have dedicated our practice holding negligent people and greedy corporations accountable for their actions when they harm Texans. To set up a free consultation, and to see how we can fight for you, contact the Law Office of Alton James III today at 469.638.5571.
