What is Mediation?

Despite what you see on TV, only about 10% of personal injury cases go to trial in front of a judge and jury. Most are settled out of court, many before a lawsuit is even filed. Often, the lawyers will sit down to negotiate a settlement in front of an professional objective party, known as a mediator. Personal injury lawyer, Charles Flaxman, who is with Flaxman Law Group based in south Florida, tells us a bit about mediation and negotiating a settlement.

What is Mediation?

Mediation is a type of alternative dispute resolution which does not require a judge, jury and full court trial. Before you move to litigation, you sit down to negotiate and see if you can come to a settlement.

The way this often works is lawyers from both parties go to a room, sit down and face each other to talk. A mediator — an objective person familiar with the law who is often a retired judge or lawyer — sits between the defendant and plaintiff and each side presents their case verbally. There is no evidence brought to mediation. You simply negotiate verbally back and forth and the mediator listens and tells each side their respective strengths and weaknesses in their arguments. The mediator’s job is to try to get the case settled. And in most cases, both sides don’t want to go to court, so both sides are very willing to listen to the mediator as a objective and neutral voice. There are various companies like Mediation Inc. that provide mediators. You pick a mediator and place to negotiate and everyone sits down to talk it all out.

Anything that is said in mediation is totally confidential and none of it can be used in court. If you reach an impasse and you do end up going to court, nothing that happened in mediation can be used against you. You are simply trying to sway the other side and convince them that you have a strong case. You are arguing for them to settle it now under your agreed terms while they have the chance because if it goes to court you are going to end up winning a lot more from them with a sympathetic jury. Conversely, they try to strike the fear into you by attempting to convince you to take what they are offering you now, or they will beat you in court and you will get much less than is currently on the table, or even nothing at all.

Usually, with the help of a mediator who points out the flaws, holes and strengths in both arguments, some sort of settlement is reached in mediation. If after several rounds of negotiation, neither side can settle, that is when you move to litigation and file the lawsuit to be fought out with evidence in court in front of a jury of your peers.