Suppose you are involved in a personal injury case in San Francisco and do not want to pursue a litigation process for settlement. In that case, mediation
may be a preferred and more effective way to close the case without going to court. However, sometimes, a judge during the litigation process might refer the case to try out mediation. So it can be conducted before or during the litigation process to settle a personal injury case with the satisfaction and agreement of both the parties – the victim and the defendant.
What is Mediation?
Mediation is a process in which the two opposing parties sit down and try to come and agree to a settlement through discussions in the presence of a neutral mediator. The mediator is trained and impartial to the case. The mediation process can occur in an informal setting or be held in the shape of a formal settlement meeting or conference. If a contract clause or statute does not bind the parties to be present, taking part in the mediation process for both parties is voluntary.
Personal Injury Mediation
In the case of a personal injury, the victim of the accident and the party, due to whose negligence the accident took place, can opt for trying out mediation to come to a compensation settlement that is agreeable to both the parties before going to court. If the process succeeds and results in a settlement, the parties are saved from going to court. But if the victim or the defendant refuses to go for mediation before the case, they can still change their mind and go for the process while the case is still active.
Who Can Mediate?
A mediator has to be a trained individual with an experience of having mediated, co-mediated, or observed the process before with an experienced and qualified mediator. Dispute resolution companies, agencies that administer, and jurisdictions usually compel 20 to 40 hours of mediation training for a mediator to qualify for the task. One can become a professional mediator through pursuing higher education in the field of law as well. A person who wants to mediate also has to submit reference letters from people who can attest to their character, have observed and evaluated them as co-mediators, or used their services to their satisfaction. Proofs of experience, education, and/or training are also required.
Some institutions and colleges are certified and highly regarded for their training and education in this regard. On the other hand, though, some are non-approved. To perform court-appointed mediation or to get certified with an agency in a state, a mediator has to have training and knowledge about the judicial system of that particular state.
While choosing a mediator for a personal injury case in San Francisco, you should ensure that the person is a professional and registered in California. They are well aware of the judicial law, rules, and regulations and can help you negotiate better. A good mediator is a good listener with exceptional peace-making abilities. The job requires reasoning and problem-solving skills as the process is all about conflict resolution. But the person representing you, your personal injury attorney, is the one who is on your team and will try to get you a favorable and the highest possible sum of money from the settlement.
Remember, a reasonable or appropriate settlement offer is not the same number for all cases but depends on several factors of your specific case. An excellent personal injury attorney considers all those factors and utilizes their skills to get you the maximum amount possible. To hire an expert personal injury lawyer in San Francisco, think Phoong Law, whether you are the plaintiff or the defendant.
How Does Mediation Work in a Lawsuit? The 5 Steps of Mediation
Before the process begins, it is ideal for the injured party to sit down with their personal injury attorney and discuss and prepare for the procedure. It is essential to decide the minimum settlement offer agreeable to the plaintiff with their lawyer. At the agreed venue for the process to occur, you can expect the defendant, a representative of their insurer, their attorney, and the mediator to be present. The defendant may or may not be there as the insurance company is the one who negotiates the settlement offer. However, the defendant being present can work for and against you. They might pressure the insurer to settle and end the case or disrupt the proceedings, making things difficult for the case.
The process starts off with the mediator introducing themself and explaining their role and the mediation process and its protocols to everyone present there. If the mediator is provided with pre-mediation documents, they will give a statement of the issue at hand.
The Problem Statement
The attorneys representing the two sides usually give statements arguing the case in favor of their respective parties. The statement contains the primary demand and the reasons supporting it. The party and their representatives who are not speaking should listen to the other party’s statement attentively.
The mediator gathers relevant information, proofs, and pieces of evidence from both parties if it has not already been provided to the mediator before the process began.
In this step, the mediator tries to identify the problem causing the dispute in the light of the provided facts and information.
The two parties are then taken to two separate rooms. The mediator goes back and forth to both the rooms, asking questions and negotiating with both parties. The mediator tries to bring the parties to a settlement that is acceptable to both. It depends on the mediator how they want to proceed with this step. Some mediators propose a settlement that they see fit and prompt the parties to amend the proposal until they agree. This part of the process is where the results are obtained – if they do.
If the process succeeds, the two parties sign a settlement agreement. If the process fails, the victim of the accident can proceed with a lawsuit.
The settlement agreement includes a clause that takes away the right from the victim to sue the negligent party in court against the sum of money agreed to by both parties. The payment is made within a month (much quicker than a settlement in court), and the case is done and resolved.
Usually, everything you say during the mediation process is kept confidential and private and cannot be used against you in a court of law. The purpose of this is to encourage the parties to be comfortably and completely honest so that the chances of reaching a settlement are higher. So whatever you say or agree to is not legally binding until you sign a settlement agreement that says that it is legally binding. It is essential to understand that a mediator is not a decision-maker. Their job is to assist both parties in coming to common, mutually agreed terms. So unless you put your signature to make a settlement through mediation legally binding for you, it is not so on itself.
Pros and Cons of Mediation
In the 1990s, mediation started being accepted as a part of the legal process as an Alternate Dispute Resolution (ADR) method. Judges often order mediation, known as court-ordered mediation, for cases they see fit to resolve the cases outside the court. A judge can order the parties to engage in the process either before or during the trial. However, parties who wish to avoid a tiring and lengthy litigation process can decide to try the procedure for settlement themselves.
Sometimes, the factors revolving around a case make directly filing a lawsuit more favorable than pursuing mediation. It is not always better to go for mediation before litigation, nor is it more beneficial to do vice versa. You need to have an efficient and experienced attorney by your side to advise and assist you through the decision-making process and throughout the litigation and mediation processes. Furthermore, a good lawyer is essential if you want to walk away with a satisfying settlement.
Advantages of Mediation
- It takes up much less time (1 or 2 days) than the court proceedings to potentially reach a settlement.
- The informal environment of the process will likely allow a friendly and non-confrontational environment to prevail.
- Everything you say stays private and confidential and cannot be used in the subsequent litigation process.
- You can choose for the settlement to be legally binding or non-binding.
- If the process is not successful, subsequent actions are available to you.
- Both the parties are willing to close the case, hence the agreement to participate in the process.
- A mediator does not advise or judge and is neutral with the sole goal of settling and resolving the dispute.
Disadvantages of Mediation
- It can turn out to be a waste of money, energy, and time if one of the parties is unwilling to cooperate.
- Unless there is a clause in the agreement settlement for it to be legally binding, it is not legally binding.
- An unskilled mediator can cause the process to go in vain.
- If a party holds information, the process can become complicated and unfruitful.
- The parties have the right to walk away from the process whenever they want without giving a reason.
Preparing for Mediation
The first step to prepare for mediation is to understand what it is and what it is not. It is the resolution of disputes through an agreement. You, as the victim, need to convince the defendant that their actions or negligence caused damage to you that deserves the amount you are asking for. The whole process is an attempt for both parties to agree to do what is right. Suppose the defendant convinces you that the amount you are demanding is unfair and gives you good reasons for this claim. In that case, you should acknowledge it and not perceive it as losing a battle.
Mediation is not a debate, and its purpose is not to prove that the opposing party is wrong and you are right. It is the justice system that assigns blame, and mediation is not for finding fault. You need to employ tactful honesty and understand the point of view of the other party to seek mutual benefit. Here are things you should refrain from during the mediation process:
- Making insulting comments inadvertently or purposefully
- Keeping facts and information confidential from the other party
- Not understanding the difference between arguments that are effective to the mediator or court and arguments that are effective to the opposing party
- Using an evaluating language instead of a neutral one
- Showing anger, fear, or making threats
- Minimizing the other person’s feelings, speak in a sarcastic or condescending tone, or making a negative judgment
- Asking the opposing party to apologize
- Using hostile non-verbal expressions
- Using statements starting with ‘you’ instead of ‘I’
- Making impulsive comments
- Assuming what the other person is thinking
- Making statements that include ‘Never’ and ‘Always’
So here is what mediation in a personal injury case in San Francisco looks like. The parties to a personal injury case might want to go to the mediation process for settling the case, or the judge, during or before the litigation process, might advise the parties to engage in a mediation process. The process involves discussing the case to come to an agreement in the presence of a qualified mediator. Facts and information of the accident that resulted in the personal injury are discussed and presented by and to both parties. The mediator tries to bring both of them to settle for an amount agreeable to both.
The importance of excellent personal injury attorneys in San Francisco, such as Phoong Law, cannot be overstated. We know the intricacies of the law and have both court and mediation experience. Our team can help you get the settlement you deserve for your physical injuries as well as pain and suffering.