Mediation is one of the last steps in a personal injury claim process before the claim goes to trial. It is a type of alternative dispute resolution wherein both parties meet together with a neutral third party to try and come to a voluntary agreement. The mediator, usually an attorney or judge, is a professionally trained negotiator who will hear arguments from both sides and try to come to a reasonable conclusion about how much is owed in damages.

While mediation can be ordered by a judge when a lawsuit is filed, it is often voluntary as it is in both sides' best interest to avoid the time, money and energy spent in a jury trial. When negotiations fail, mediation is often the most sensible path forward. A mediator has no legal authority to order a settlement amount. However, they are skilled at getting each party to see the merits of the other's arguments, and weak points of their own.

Mediation Step-By-Step

The parties involved in a personal injury mediation will be you as the injured party, your attorney, the insurance adjuster, the defense attorney and, of course, the mediator. The liable party, for instance the distracted driver that injured you, is not usually required to attend, but may do so if they wish.

Seven to 10 days before the mediation, your attorney will send a detailed mediation letter to the mediator and other side, explaining why the defendant is liable and what damages they are responsible for. They may also put together a list of similar cases and what the results were for those plaintiffs.

The mediator will organize and lead the mediation depending on each side's receptiveness and demeanor. Most of the time, a mediation follows this process:

• The mediator introduces themselves and everyone present to each other. They explain the rules of mediation, the common goal of finding a reasonable settlement offer and encourages both sides to be open to cooperating with the other.
• Both sides make an opening statement, explaining their position and the consequences they think the insurance company is liable for. Each side can provide documentation such as medical records or depositions. They may also offer ideas about a resolution, as may the moderator after the opening statements.
• If both parties are willing to have an open, respectful dialogue, the mediator may have each party respond directly to the other party's opening statements.
• Next, both parties will be moved to separate rooms, where they will meet privately with the mediator. The mediator will go back and forth between each party, giving an unbiased view of the strengths and weaknesses of each argument and exchanging settlement offers. Without saying directly what the other party said in private, the mediator will use the information to try to convince the defendant to raise their offer and the plaintiff to lower their demand.
• If a settlement is not reached, the mediator may bring both sides back together for final face-to-face negotiations. If a settlement is reached, the mediator will put the terms in writing and have each side sign in.

If both sides cannot come to an agreement, it does not necessarily mean that reaching a settlement is impossible. Often, after mediation the insurance adjuster will go back to their insurance company for the authority to offer you more money than was previously authorized.

Other Important Things to Know About Mediation

• Both sides must agree to whatever settlement is reached; if they don't, things will likely proceed to a lawsuit and trial.
• Nothing said by either party in a mediation can be used against them later. This takes away any potential risks for both sides.

The only real downside to attempting mediation is the time and the cost, which is usually split evenly between both sides. However, if your personal injury lawyer has already been negotiating for months without receiving a fair offer, mediation is worth it to get the full compensation you are owed and avoid a lengthy, stressful trial.