The What – Mediation is a voluntary procedure where a neutral third party (the mediator) assists the parties to a settlement. In a personal injury or wrongful death case, the procedure most often involves the parties and their attorneys meeting with the mediator for a one or one-half day session. Usually, this is held at the mediator’s office. The session starts with both sides meeting with the mediator in a group session. During this session, often the attorneys for each party summarizes that party’s position. There is no testimony.
Massachusetts law provides that all communications during a mediation of a personal injury case or wrongful death case are confidential which means that anything said cannot be used in later court proceedings. The mediator does not have the power to decide the case or any of its issues.
After the group session, the parties typically split up into separate rooms and the mediator begins travelling back and forth between the parties. During each trip, the mediator discusses the case facts with the parties and their attorneys and brings settlement proposals from one party to the other. If the mediation works as intended, the settlement proposals get closer and closer in amount until there’s an agreement and the case is settled. Along the way, other terms than the dollar amount of a settlement are discussed and negotiated, such as confidentiality, medical and other liens, the possibility of a structure settlement and timing of payments. If the mediation is unsuccessful (the parties cannot agree on a settlement amount and terms), the case continues through the court system to trial.
The Why – Personal injury and wrongful death cases are resolved by either settlement or trial. Settlements can be worked out between the parties without mediation and this sometimes happens. But, experience has shown that a mediator is more likely to achieve a settlement than the parties alone. The alternative to settlement, trial, has elements of risk and expense not present in settlement. At trial, one party wins and the other loses. Settlement through mediation takes away this all-or-nothing risk and replaces it with the certainty of a settlement agreement.
The Who – Mediators are usually retired judges or experienced lawyers. Usually, they’ve received some specialized training in mediation and dispute resolution. Aside from the mediator and the parties, no one else is present during the mediation and unlike a deposition or trial, there’s no court reporter or transcript prepared. A mediation, unlike a trial, is not a public hearing or proceeding.
Mediators are chosen by agreement of the parties, not by the judge or court in which the case is pending. It’s particularly important to the settlement process that the mediator’s experience and judgment are valued by both sides of a case.
The injured victim or deceased victim’s personal representatives are present, except in the most unusual circumstances. In addition, in some cases, other family members of the victim may attend, particularly when they may be consulted about settlement issues. The attorney for the injured party always is present throughout.
From the defense side, a representative of the insurance company usually attends in person. On infrequent occasions, this representative “attends” by telephone. It is unusual for an individual defendant to attend. For a corporate defendant, sometimes a corporate representative will attend. The attorneys hired by the insurer to defend the case will be at the mediation and, if the defendant has hired their own attorney, he or she will attend as well. Finally, the insurers on occasion propose a structured settlement, and when this happens, they often ask a broker in this type of settlement to attend.
The When – Mediation can occur at any time from the initial stage of a claim before suit to weeks or even days before the scheduled trial date. The most frequent point for mediation is after a lawsuit has been filed and after the parties have had a chance through discovery (interrogatories, document exchange and depositions) to gain some information about the other side’s position and evidence. Mediations that occur when trial is imminent often come too late to avoid the expense of the push of trial preparation that occurs in the weeks before trial. For this reason, insurers, if they’re interested in settling a claim, push to schedule mediation well before trial.
SUGARMAN attorneys have broad experience with mediations as part of their personal injury practice. If you or a family member has been injured by the fault of a corporation or individual and wish to speak with one of our attorneys, please fill out a Contact Form, call us at 617-542-1000 or e-mail .