Three Things You Should Know About Using Mediation In Your Personal Injury Lawsuit
Although it's common for people to file lawsuits to collect compensation for injuries and losses, more and more plaintiffs are choosing to settle their cases using mediation. This involves you and the defendant sitting down with a neutral third party who helps the two of you work out a mutually satisfactory settlement. This option is typically cheaper and less frustrating than litigating a lawsuit in court. However, here are three things you need to know about mediation before you sign up for it.
Mediation is Not Binding
Unlike arbitration where you have to adhere to the decision made by the arbiter, the agreement you reach with the help of the mediator is not binding. In fact, you retain the right to take the case back to court at any time during the proceedings. If you don't like where the negotiations are headed or the final settlement is not palatable to you, you can continue with your lawsuit and let a judge or jury decide the outcome.
Be aware, though, the defendant also retains the right to not go along with the deal. He or she can simply notify you of his or her intention to ignore any agreement the two of you reached with the help of the mediator. You would then have to decide if you wanted to continue the case in court or abandon it altogether. In either case, you'll lose the money spent on the mediation process and extend the length of time it takes to get compensation from the defendant.
This is why it's important to be sure the defendant honestly wants to settle the case before investing time and money into the process. It's also a good idea to keep your court case active. Every state has statute of limitation laws that put a deadline on how long you have to file a personal injury lawsuit. If you have your case dismissed in favor of mediation but the defendant backs out at the last minute, it may be too late for you to file the case in court again. To avoid this, do what it takes to keep your case alive in civil court until you have a signed mediation agreement with the defendant.
Mediation Testimony Can't Be Used
For the mediator to help you and the defendant come to an agreement, he or she has to hear testimony from both parties and look at any available evidence. You can speak to the mediator privately. Although the mediator won't reveal information you shared in confidence, at some point you will have to make statements about the case in front of the other party and vice versa.
The good thing about mediation is any statements made during the process can't be used against you in court or in later stages of the case (e.g. during arbitration). Unfortunately, you can't use anything the person says in mediation in court either. This means you need to be careful about what you say when you have an audience. Additionally, if the defendant does say something you think would help you in court, you would need to find another way to bring the information to light (e.g. find a witness).
Mediators Charge Substantial Fees
Oftentimes mediators are former attorneys or judges who have experience with personal injury cases. As such, they typically charge a hefty per hour rate for their services. The amount can range from $200 to $800 per hour, depending on a number of factors including experience, location, and case complexity. In comparison, a no-frills case can cost $15,000 to litigate in court, while complex cases can cost between $30,000 to upwards of $100,000.
The good news is you and the defendant would typically split mediator's fees down the middle, so the actual amount you pay would be about half. However, if you're having trouble coming up with funds to pay a mediator, you can sometimes find organizations who have professionals that take cases pro bono or charge on a sliding scale.
For more information about mediating a personal injury case, contact an attorney from a firm like Burke Schultz Harman & Jenkinson Attorneys at Law.
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