Mediation is an informal process by which two (or more!) parties can come to a settlement in private. Both parties agree to hire and pay for a mediator, a trained, certified professional (often a former judge) whose role is to serve as a neutral party.
Mediation is sometimes voluntary and sometimes mandatory, but it follows the same general structure regardless. The process involves both parties, each party’s attorney, and the mediator. Each party and their attorney are stationed in a separate room, and the mediator serves as a go-between, encouraging movement toward a compromise. The parties may have the opportunity to speak to the mediator in private and to speak directly to each other with the mediator as a facilitator.
Usually, the goal of mediation is to come to a settlement – that is, to agree on an amount to resolve the claim without having to file a lawsuit. When mediation is successful in resolving the case, the parties will often draft up a settlement agreement and sign it on the spot.
Mediation vs. arbitration:
Mediation is a form of alternative dispute resolution, or ADR. Another form of ADR is arbitration, which also involves a neutral third party. However, the key difference is that in arbitration, the neutral party makes the decision. In mediation, the neutral party does not make the decision – instead, the mediator encourages cooperative decision-making from the opposing parties. To learn more about arbitration and Washington laws on mandatory arbitration, check out our blog post on MAR!
Advantages of mediation:
One obvious advantage is that, since it is informal, there are fewer rules to worry about. Mediation often affords the parties more flexibility than they would have in court. Mediation also humanizes the process of resolving a claim by putting real people from each side in a room (or virtual room) together.
A less obvious advantage is that anything said during mediation cannot be used in court. Settlement offers are inadmissible, so each party can speak freely without worry that their offer will be used against them later.
What do I need to know about mediation in my personal injury case?
- Don’t be fazed by a low initial offer. In mediation, the two sides may start out with numbers that sound completely different, but the goal is to move toward an agreement that works for both parties. Be patient and remember that it’s not about where you start, it’s about where you end up.
- Have reasonable expectations and be open-minded. Both parties need to be cooperative and willing to compromise for mediation to work. Don’t make unfair concessions, but remember why you’re in mediation: to come to an agreement.
- Be patient. Many mediation sessions can take hours if not days. Personal injury cases are often very complex, and sometimes mediation takes a long time. Don’t lose hope if your mediation isn’t resolved in one or two sessions. Your attorneys and mediator are working hard to settle in a way that is fair and acceptable to you.
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