Learn how using a mediator will change your personal injury case, the benefits they offer, and what to expect if you go this route.
“You could have killed yourself when you fell! You should sue!”
If you’ve ever had a slip and fall injury, you’ve probably heard some version of this statement. When you’ve been seriously hurt and the responsible property owner’s insurance company refuses to help, you don’t have any other choice.
But few injured people (and even fewer of their friends giving unsolicited advice) think beyond the act of suing.
It’s important to think about how your personal injury lawsuit will end. It’s arguably more important than the decision to file. After all, you need to have a clear idea of what you’re trying to accomplish when you file your premises liability lawsuit.
Most lawsuits never reach a jury verdict. According to one government survey, 97% of lawsuits are settled without a trial. So, any expectations that you have about your personal injury lawyer dramatically arguing your case before a jury are probably unrealistic.¹
Alternative Dispute Resolution
What happens to the 97% of personal injury cases that don’t make it to trial?
The answer is something called alternative dispute resolution or ADR. In its most basic form, ADR is the resolution of a civil lawsuit without going to trial. This can take a number of forms.
Sometimes, it’s a negotiation between you, your personal injury lawyer, and the insurance company. Sometimes it’s an arbitration, where you and the other side have agreed to have a private, neutral third party decide your case out of court.
Most often, though, it means that you will resolve your slip and fall claim in some sort of mediation, meaning a mediator will facilitate negotiations to help both sides reach an agreement. The mediator does not decide the outcome.
This article will introduce you to the concept of mediation and how it works in personal injury claims, particularly slip and fall cases. We’ll also talk about some aspects of slip and fall mediations that you should be aware of no matter what kind of mediation you use.
What Is Mediation?
In its most basic form, a mediation is a guided negotiation. This means that you and the other side attempt to reach a mutually satisfactory end to your dispute with the aid of a neutral third party, called a mediator.
Mediators are often judges (either active or retired) or trial lawyers with a lot of experience in civil litigation. Mediations have a number of advantages over jury trials.
First, while a trial is a public proceeding and there is a permanent record of what happens, mediations are confidential. Only the parties to the lawsuit, their lawyers, insurance adjusters, and the mediator are present. Everyone is required to keep all mediation communications confidential.
A mediation is also much shorter and less expensive than a trial. Most slip and fall mediations don’t take more than a day to complete. Though attorneys (and private mediators) have to be paid for their time, there’s no need for costly medical expert testimony or other fees associated with a trial.
Private vs. Court-Ordered Mediations
In many courts, judges want the parties to give mediation a try before going to trial. Judges will often order the parties to mediate their cases, usually with another active or retired judge.
Court-ordered mediations typically come at low or no cost to the parties. However, it may be important to your attorney to get a particular mediator with certain experience. In this case, it can be worth it to spend extra money on a private mediator.
Private mediation can take place before or after a lawsuit is filed. If you and your attorney decide to try mediation before filing a slip and fall lawsuit, you still have the right to sue if the mediation fails to settle your injury claim.
Perhaps the biggest advantage of a slip and fall mediation over a trial is control. As a participant in a mediation, you have the ability to negotiate and agree to a settlement, and you know exactly what you’re getting. If you submit a case to a jury or a judge, you’re depending on them seeing the case the exact same way you do.
Litigation is risky, because you never know what the judge or jury will finally decide. Mediation removes that risk by giving you and your attorney the ability to have a direct say in the outcome of your case. And if you can’t arrive at a solution, no one will force you to accept a result you don’t want. The worst outcome is that you lose the day it took you to mediate.
How Slip and Fall Mediations Work
The mediation process may look strange to non-lawyers. Once you’re ordered to participate in mediation (or chose to do so), you and your lawyer will need to begin preparing.
Generally, the person hired as a mediator must be approved by both parties. Your attorney may prepare a shortlist of potential mediators and ask the property owner’s team to pick one.
First, keep in mind that most (or in some cases, all) of your conversation at the mediation will be with the mediator, not the other side. Usually, the two sides spend very little time in the same room, with the mediator going back and forth between them.
Just as every conversation you have with the mediator is confidential, the insurance company, property owner, and their lawyer’s conversations with the mediator will also be kept from you. When one side makes a demand or settlement offer, the mediator should clarify what they are allowed to say to the other side.
Your lawyer will need to prepare a written statement for the mediator. This will include a summary of your claim, with all the evidence you’ve obtained in the case, including your medical bills and treatment records. Expect to discuss all of this evidence, as well as your own experience of the slip and fall accident, with the mediator.
It’s very important that you have an up-to-date assessment of your medical condition at the mediation. You and your lawyer must also be straightforward with the mediator about your evidence. Because everything you say to the mediator will be confidential, feel free to speak freely and candidly about your medical condition.
The mediator will likely tell you their impression of your case. They’ll discuss the weaknesses and strengths they see. They may even tell you what they think the case is worth. During the process, it’s important not to get defensive with the mediator. They’re not trying to attack you. One of a meditator’s jobs is to help you see your case as the judge or jury will.
Once the mediator has a good handle on the facts of your slip and fall accident, they will try to get the parties to come up with acceptable settlement solutions. The biggest part of any solution, of course, will be a cash payment. (Mediation is flexible, though, and if an apology or other solution can help, bring that up with the mediator.)
Unique Issues in Slip and Fall Mediations
Just as slip and fall cases are different from other types of court cases, their mediations can also be unique. First, keep in mind who will be attending your mediation. In addition to the property owner and their lawyer, expect an insurance adjuster to attend the mediation. (The insurance company will end up paying any judgment or settlement.)
Second, because medical records and treatment are such a big part of slip and fall cases, expect the other side and the mediator to focus on the extent of your injuries.
Some claimants, worried that a head or back injury may not be visible enough, may think that they need to “play up” their injuries for the mediator or the other side. This is a mistake. It can make you look disingenuous, which weakens the settlement value of your case and may even tank the possibility of a settlement.
Also, mediators in slip and fall cases are in that position because they have a lot of experience with those cases. A slip and fall mediator can look at your treatment records and prognosis and likely understand it much better than a juror, who may have never had any experience with slip and fall cases at all.
Coming to a Personal Injury Settlement Agreement
When you’ve been hurt as a result of a property owner’s negligence or intentional misbehavior, you have a right to be angry. You might want to make them admit what they did, or to make them publicly compensate you.
Those impulses are understandable. But mediation can help you get the compensation you need faster, with less aggravation. Mediation can also give you more certainty in the outcome, and let you put it behind you with a fair settlement more quickly than you could if you have a verdict followed by a lengthy appeal in your case.
If you think that mediation is a good option in your slip and fall case, it’s important to get quality legal advice from an expert. Contact a qualified personal injury lawyer in your state for a free case evaluation.
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