Mediation in personal injury claims aims at settling and bringing financial compensation to the victim of another person’s wrongful actions.
Concerning settlements, an important question comes to mind: does mediation always result in a settlement in personal injury cases. Getting a clear picture of the differences between the two in personal injury claims requires defining them separately in general terms.
Mediation is an alternative dispute resolution method that offers a neutral and confidential approach to dealing with claims between disputing parties. Unlike litigation, mediation is a non-adversarial procedure with the aim of reconciliation of opposing interests. The goal of mediation is not beating the adversary and winning the case. On the contrary, mediation aims to bring about a peaceful resolution of the claim through negotiation facilitated by a third neutral person called the mediator.
The mediator, generally chosen voluntarily by the parties, conducts the mediation in a friendly and non-adversarial environment. After introductions and opening statements, the mediator (a retired judge, attorney, or another professional with expertise in personal injury claims) conducts private and joint sessions.
Generally, in an initial joint session, the parties (oftentimes through their attorneys) give an overview, including their initial position, of the claim. In later private sessions, called caucuses, the mediator discusses the claim with each party separately to assess their positions and the possibility of settlement. The mediator goes back and forth between parties without disclosing everything that the other party said.
During these caucuses, the parties openly discuss the disputes issues of the claim, making offers and counteroffers. The mediator facilitates the negotiations between the parties, trying to lead them to an agreement.
If the parties settle, they sign an enforceable agreement resolving the claim. Otherwise, the outcome of the mediation is an impasse and the parties move toward a court trial.
During every stage of the mediation process, the mediator guarantees confidentiality, meaning that nothing disclosed during the negotiations will become part of any public record or future litigation.
In short, a settlement is an agreement between the parties resolving the claim. It can happen in various ways. The parties can settle through informal negotiations or mediation. Reaching a settlement resolving a claim is possible before a court trial, during any stage of litigation and even after a court trial.
The vital difference between settlement and mediation is related to the people involved. While mediation includes the disputing parties, their attorneys (if any) and a mediator, a settlement does not necessarily involve a third person. In other words, a settlement can occur with a mediator, but the parties can come to a settlement on their own in informal negotiations as well.
Although mediation is an informal process (especially compared to litigation and arbitration), it still has a specific structure. On the other hand, a settlement can happen during informal talks, regardless of any established process.
Furthermore, timing of the mediation is generally set at a reasonable time before trial, to allow the parties to settle and avoid the costs of going to court. Settlement can occur before, during or even after litigation and a trial.
Finally, unlike mediation which generally tends to resolve the claim entirely, a settlement can relate to the entire claim or only one part of the disputed claim.
Based on the above differences, it should be clear that mediation is a process while a settlement is a goal. In other words, mediation in personal injury cases is not the same as settlement.
The parties in a personal injury dispute can settle without mediation. Conversely, mediation will not always end in a settlement.
In sum, mediation is an invaluable tool in resolving claims and bringing fair financial compensation to an injured party caused by wrongful actions of another person.