Learn something new every day
More Info... by email
Personal injury mediation is mediation that occurs prior to a personal injury lawsuit going to court. Personal injury mediation may be required by a court before allowing one to bring a lawsuit, or may be encouraged when negotiating with an insurance company. Although a plaintiff and defendant may be required to attend mediation in a personal injury litigation dispute, neither party is bound to come to an agreement; though, if they do agree, the mediation will become binding.
When a person is injured by someone else's negligence, carelessness, or illegal actions, he or she is entitled to bring a personal injury lawsuit against the person or people who caused them to sustain the injury. Often, a plaintiff brings this lawsuit against the insurance company of the person who caused the injury, but not always. The lawsuit, called a tort action, is brought in civil court.
When a plaintiff files papers in court, the case is set for trial. However, although all personal injury actions have the potential to go to trial, and to be resolved by a judge or jury, many of these cases settle out-of-court. The cases settle frequently because neither the plaintiff nor defendant wants to take the risk of going to trial, and having their compensation decided by a jury. Instead, it is common for both parties to negotiate an agreement, in which the defendant pays the plaintiff a sum of money, and the plaintiff agrees to give up their right to sue.
Personal injury mediation is a type of formalized negotiation, in which a licensed mediator oversees negotiations between the plaintiff and the person or parties he is suing. This mediator may be court-appointed, or may be a person who frequently works with insurance companies. Often, professional mediators who oversee personal injury mediation are licensed attorneys or arbitrators. This is not a requirement, however, and the specific qualifications to become a professional mediator vary by jurisdiction and by situation.
The mediator, regardless of his or her qualifications or licensing, aims to help the parties who are on opposite sites of the lawsuit come to an agreement. In personal injury mediation, the mediator tries to facilitate a mutually agreeable compromise, in which the defendant agrees to compensate the plaintiff in some way, and in which the plaintiff agrees to accept this compensation.
Mediators in personal injury mediation can try to facilitate this agreement in a number of ways. They can encourage active listening, in which both parties present the strongest points of their cases, and in which both state their demands. They can also help the parties to find ways to communicate using other mediation techniques.
When the parties submit to mediation, they work with the mediator and each other. Neither party is bound to agree, and each party can walk away from the personal injur mediation at any time. Once they agree, and sign a formal agreement, they are bound by this legal document that they agreed to in mediation.
I hired an attorney to pursue a medical malpractice lawsuit one time, and the first thing the doctor's insurance company did was recommend a a personal injury mediation attorney. I wasn't sure that was the right way to go, but my own attorney reminded me that personal injury and malpractice litigation can take a long time to reach the trial stage. If I truly wanted to come to a satisfying agreement and be done with the situation, I should seriously consider speaking with a mediation lawyer.
I was actually glad I did, since I was able to negotiate an out-of-court agreement with the doctor in question. It really was never about the money, except for fair compensation
for my pain and suffering. I wasn't looking to get $10 million in punitive damages or anything. I just wanted him to acknowledge he made a serious error and offered a medical service he knew he couldn't perform safely. I didn't want others to go through what I went through.
He agreed to stop promoting himself as a qualified plastic surgeon, and his insurance company paid me a satisfactory monetary settlement. I agreed to drop the lawsuit and not talk about the incident in public.
I have a friend who works in the personal injury mediation field, and he tells me that almost all of his cases end up being settled out of court. The few plaintiffs who hold out for a jury trial are often hoping for large personal injury awards as an outcome. My friend works really hard to convince plaintiffs not to pursue personal litigation with the idea of becoming independently wealthy in mind.