Mediating Serious Personal Injury Cases
Selecting the right mediator is of paramount importance to a successful mediation. A poor mediator such as one who simply conveys offers and demands, or one who declares an impasse after only a few hours or several exchanges of numbers is of no help and may harm future settlement discussions.
There are several factors to be considered in selecting a mediator. First, the mediator must be acceptable and credible to both sides. This means that you probably want to avoid mediators who are believed to have strong pro-plaintiff (which is extremely rare) or pro-defense leanings, as well as mediators who have an established relationship with any party or counsel.
Plaintiffs need to be careful to avoid assuming that a plaintiffs' lawyer mediator is on their side. Far too often, the plaintiffs' lawyer mediator is getting the work because he/she is has pro defense leanings, at least as a mediator, which is how they got defense counsel to agree to use the mediator in the first place.
Second, you should consider the client involved. This can be more important from the plaintiff’s side. There are two prevalent mediation styles- evaluative and facilitative. The first kind of mediator tends to focus on formation of an independent evaluation of the value of the case, and then tries to steer the parties to a resolution in line with that value. A facilitative mediator focuses more on the desires of the parties, and looks for ways to steer the matter to a resolution that accomplishes as many of each side’s goals as possible.
Most personal injury litigants have limited experience with the legal system generally, and the litigation of injury claims specifically. Often, these clients are less satisfied with the evaluative style mediator because of their focus on “legal” factors and numbers. Anecdotally, facilitative style mediators seem to be better suited to these clients because they do a better job of putting the client at ease, helping them to understand that mediation is a two-way street, and in ensuring that the client perceives the mediation as something designed to assist them in problem-solving, rather than as an exercise in leveraging the client to accept a resolution that the client thinks is driven by the attorneys, defendant, or mediation process.
The right mediator can be the difference between a great settlement and no settlement
If you are unfamiliar with a proposed mediator, find out what kinds of cases the mediator handles in his practice and what type of experience they have in personal injury law and mediation in general. If you lack familiarity with a proposed mediator, your state trial lawyers’ association can be a valuable resource in gathering intelligence.
More and more, courts are requiring mediation as part of the pre-trial discovery process. This tends to result in the mediators being assigned randomly. Pay particular attention to this. In many jurisdictions, the only requirement to make it onto the court’s list of approved mediators is the completion of a 40-hour mediation class.
You may want to explore having your case reassigned to a mediator who has substantive experience in your area of the law. Mediating a personal injury case before a mediator who customarily practices in family law would tend to be ineffective.