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Personal injury claims involve seeking monetary compensation from the responsible party due to injuries resulting from car accidents, dog bites, medical malpractice, intentional infliction of emotional distress, and other wrongful actions.
When a personal injury occurs, both the liable party and the victim are interested in resolving the matter out of court. In most cases, the parties deal with personal injury claims in informal negotiations. Settling claims in a non-adversarial setting enables participants to avoid lengthy and costly litigation. However, sometimes negotiations reach a dead end. Neither side is willing to invest time and effort in achieving a compromise. In that situation, filing a lawsuit appears as the only way out of a stalemate.
Going to court to prove a personal injury claim requires demonstrating that the liable party had the duty to act carefully and that they failed to do so. If such failure caused the accident in which the victim suffered damage, the plaintiff might succeed in recovering damages in court.
Recovering damages (economic and non-economic) in litigation is a challenging task. The plaintiff should be ready for lengthy, expensive, and often ineffective procedures.
As an out-of-court process, mediation plays a significant role in resolving personal injury disputes. It offers a neutral, confidential, and flexible approach to dealing with personal injury claims.
Sustaining personal injury leaves the victim with feelings of agitation, anxiousness, anger, and distress. Resolving personal injury claims in litigation adds insult to injury. As an adversarial procedure, litigation can further deteriorate already disrupted relationships between the parties. A hostile atmosphere in the court process cannot bring reconciliation. Even worse, it is often ineffective in providing the victim with fair financial compensation.
The role of mediation in personal injury claims is entirely different. The focus is on the reconciliation between the conflicting parties. The mediator explores the causes of the dispute, attempting to find a common denominator that will lead to a settlement. The friendly environment of mediation is more likely to result in a fair and mutually satisfactory agreement regarding the compensation.
The mediation process has four typical stages: introduction, opening statements, and private and joint sessions. First, the mediator introduces themselves, presenting their credentials. After opening testimonies, the parties withdraw to separate rooms for private sessions, called caucuses. During separate sessions, the mediator hears each party’s arguments, estimating the possibility of settling. In the joint session, the parties and the mediator gather in one room for negotiations. They bring offers and counteroffers that often result in a settlement. The mediator does not have decision-making authority. Their role is to facilitate talks while staying neutral. Successful negotiations result in an agreement.
The parties choose mediators voluntarily. Unlike litigation, the parties are behind the steering wheel in mediation. They can change mediator at any time or leave negotiations altogether. Instead of waiting for a binding decision from a state-appointed judge, the parties control the process and the outcome in mediated personal injury disputes.
In personal injury cases, parties disclose sensitive personal information. The mediation provides them with confidentiality at each stage of the process. The private talks (caucuses) are confidential. The mediator cannot reveal what they discussed with the other party unless authorized. Furthermore, if the mediation does not end successfully, the parties cannot use confidential information in discovery (if they continue with litigation).
Mediation is a far more effective dispute resolution method than litigation. However, there are some disadvantages to mediating personal injury claims.
First, some insurance carriers may be reluctant to agree to mediation. If informal negotiations fail, they will more likely proceed to litigation.
Next, in mediation, the parties control the process and the outcome. Although considered one of the benefits of mediation, that can prove to be one of its disadvantages. Namely, no one can guarantee the process will end in an agreement. On the other hand, a state-appointed judge issues a binding decision in litigation, so there is no doubt about dispute resolution.
Finally, mediation in specific personal injury claims can be expensive.
Before you embark on the mediation journey, ask yourself if out-of-court settling is the right choice for your dispute. There are several factors you need to consider.
Mediation is voluntary, meaning that both parties must be willing to participate in mediation sessions. As mentioned, some insurance companies refuse to mediate once informal negotiations are unsuccessful. Others consider mediation a waste of time and resources.
Participating is not enough. You have to stay open to proposals from the other side. Mediation is about negotiating the best possible outcome. Both parties must be willing to change their initial negotiating positions. A fair settlement is always a compromise between two opposing points of view. If you do not want to compromise, then litigation is probably a better option.
Lastly, you will need an experienced personal injury mediator near you. There are a lot of mediators out there, but not all of them are experts in personal injury mediation. Before you decide to mediate your claim, put in time and energy to find an experienced mediator in your area. Do not forget that the other side has to agree to your choice.
Thomas Chase is one of the earliest mediators in the Twentieth Circuit. Mediating personal injury claims in Florida since 1991, his experience allows him to see your dispute from various perspectives in helping you negotiate a mutually beneficial outcome.
Call us at 239-340-2732 to book your appointment.