What is a "Mediation?" - McDuffey & Medcalf LLC

“Mediation” in Personal Injury Law

An often voluntary form of furthering the negotiation of settlement where a neutral third party (mediator) receivesand reviews the relevant evidence from the perspective of either side to be able to discuss the mediator’s impressions of it and what a jury might do with it if the parties are unable to successfully negotiate a settlement ahead of and without a jury trial. While the parties will typically send summaries of the evidence and issues to the mediator aheadof the mediation, the mediation process happens in real time. Often, this means the parties and their attorneys will travel to the same location. Sometimes, it will happen virtually by/through Zoom. Either way, it is most common for the opposing parties to remain separate (in their own rooms) throughout the mediation. This helps keep the partiesfrom infuriating one another, and allows the parties to brutally honest and candid with the mediator when he/she is in their room. The mediating will go back-and-forth between rooms and deliver the negotiation position of the opposing sides to one another as he/she learns them. Sometimes this might take a full day. Other times, it might only be a few minutes. Either way, the mediator cannot force either side to do anything. The mediator is only making recommendations. No evidence is created during a mediation, and if the case does not get settled during mediation, nothing other than that it happened and did not result in settlement can be discussed on the record (neither side can present what the other was willing to pay/take at mediation to the jury). Many cases are able to advance negotiations through mediation where they had otherwise stalled.