Mediation is a process that allows parties in a personal injury lawsuit to resolve the case short of going to trial. Many states have gone through a mandatory mediation process in every case. Maryland courts refer the parties to mediation as a matter of course once a complaint and answer have been filed. Maryland law, however, allows the parties to opt out of mediation should one of them choose to do so.
There are important differences between mediation and other judicial proceedings, such as a trial, or a binding arbitration.
- The proceedings are confidential
- Attendance may be mandatory, but resolutions are voluntary
Mediation is confidential. What you say, and what the other side says in mediation remains in mediation. It will never come out in court. Mediation is presided over by a mediator. A mediator is ideally a former judge, or a long-time, seasoned attorney.
This is not always the case, unfortunately. The mediator’s role is to help the parties reach an agreement -if possible. Any agreement reached is voluntary. The mediator may not compel or order the parties to agree to anything. The mediator does not decide the case, as a judge in a bench trial or as an arbitrator would. Rather, the mediator’s role is to facilitate an agreement, if an agreement can be reached.
A typical mediation in a personal injury case sometimes begins with brief opening statements by the attorneys, to familiarize the mediator with the facts and issues in the case. Some mediators have adopted a pre-mediation memorandum approach, where the personal injury attorney’s prepare legal briefs before the conference to inform the mediator of their relative positions. The parties are then typically separated into private rooms for what is called “caucus”. In this process, the mediator will visit their respective parties, relay offers, outline an argument or bargaining position, and try to facilitate an agreement. The effectiveness of the mediator can be vital to a successful outcome.
There are as many styles of conducting a mediation as there are mediators. Some are effective. Some are not.
I Attorney Eric T. Kirk have found over the years that if the mediator is a long-time, veteran attorney, or better yet, a retired judge who has heard thousands of similar cases, that the parties tend to listen to what that skilled, experienced individual says. In many instances, the case settles in accord with what this type of mediator says would be the likely outcome in court based on their experience. On the other hand, if the mediator lacks the chops and the authority that comes with years of experience, it makes the case unlikely to settle.
The opinions of the less seasoned mediator just don’t carry the same weight. Some mediators are very involved in the process- actively discussing the strengths and weaknesses of the parties’ cases with them and their lawyer. These mediators work with the parties, trying to get them to recognize the strength’s of the other side’s case and the weaknesses in their own. Other mediators take a more relaxed approach, simply carrying offers back and forth between the participants. A key fact for the participant to recognize is that in mediation, their role is limited. There is no testimony. They will not be asked questions by the other side’s lawyer. They may speak to the mediator if they choose, or they may speak to their lawyer and through their lawyer. The only thing a party has to do at mediation is say “yes” to the agreement if reached, or “no” if an agreement cannot be reached.
Traditionally, mediation conferences have been “live” in-person events for most of the participants. Sometimes, claims adjusters “appeared” by phone. The 2020 coronavirus pandemic has altered that playing field, perhaps on a permanent basis. Mediations and settlement conferences are being conducted telephonically and remotely on video platforms. What ever the ultimate form of the conference, it ends with a settlement- or not.
If there is no agreement, the case proceeds to trial.
If the parties are able to reach an agreement, the mediator will reduce the agreement to writing and have all parties and their attorneys sign the documents. Mediation can be an effective tool for resolution. As with many things, the timing of mediation is key. The goal of a mediation is to resolve cases short of trial and lessen the caseload of the courts. If mediation occurs at, or near, the end of discovery, but before parties have incurred substantial litigation costs, there is an opportunity for settlement that allows for the saving of those litigation costs and time expenditure. On the on the other hand, if mediation occurs too early, one side might be uncomfortable with a settlement without having the opportunity to assess, through discovery, the strength of the other side’s case. Moreover, if mediation occurs just prior to trial, the parties may have already expended large amounts of money on litigation and expert witnesses, and maybe more willing to take their chances in court.
