If your personal injury claim has already been ordered to mediation, you have already found yourself in the unenviable position of being in litigation. This article talks about what you can expect during the mediation process regarding your automobile accident.
Let’s say you were driving on 321 in Hickory when another vehicle going the opposite direction lost control, crossed the median, and struck you head-on. You had previously had an accident where you sustained an injury to your neck, but it had been doing much better prior to this new accident. However, the insurance company for the at-fault driver in this accident says that the surgery your doctor now says you need on your neck is not from this accident. They claim it is from the prior accident, and you would have eventually required the surgery anyway and are not willing to include any surgery in their settlement negotiations. So, you filed a lawsuit to fight for the compensation you deserve.
Throughout North Carolina, cases filed in Superior Court are automatically ordered to mediation, also known as Alternative Dispute Resolution (ADR). Mediations are governed by the North Carolina rules for Mediated Settlement Conferences and Other Settlement Procedures in Superior Court Civil Actions and the Standards of Professional Conduct for Mediators. As a mediator, certified by the North Carolina Dispute Resolution Commission (NCDRC), mediation is one of the best opportunities to get your personal injury lawsuit resolved without having to take the risk and incur the expense of an actual trial.
Mediation is one of the few times that all the parties involved, including the automobile liability insurance company, come together in the same room, whether in person or virtually, to attempt to resolve the case. Often, there will have already been a trial date assigned and an extra added incentive for the parties to try and settle the claim.
Typically the attorneys for the parties will agree on a mediator and designate the same with the court. In personal injury cases, the mediator is almost always an attorney. However, it is not required as long as they are certified by the NCDRC. If the parties cannot agree or fail to timely designate a mediator, the court will appoint a mediator from an approved list of certified mediators.
A mediation starts with an opening session where the mediator describes the process, hitting specific points required under the above rules. Afterward, usually, the attorney for the Plaintiff (the person bringing the lawsuit) will give a brief opening statement about their client’s case, highlighting all the reasons they think the insurance company should pay. Next, the Defendant’s attorney will give an opening statement pointing out all the reasons they believe their client should not be responsible for Plaintiff’s damages.
After the opening session, the parties will separate into private spaces. The mediator will then go back and forth between the parties relaying offers and demands and the reasoning behind the same. The mediator’s job is to try and find common ground or points of law so the other side will either lower their demand or raise their offer. However, the mediator cannot make either side actually put any offers on the table or force the Plaintiff to accept any offers.
There is no set time limit for a mediation. It will continue until there is either a settlement or the mediator feels progress is not being made and will not be made and therefore declares an impasse. Either way, the appropriate paperwork will be signed and filed with the court, either letting them know the case settled or that it was impassed and will be going forward to trial.
Just because a case does not settle at mediation does not mean it still cannot be settled without the necessity of trial. Sometimes mediation can be an essential discovery tool for the parties. While settlement negotiations made during mediation are confidential, facts shared that would otherwise be discoverable are not. That means there is more work to be done to get a case ready for trial. Typically that involves depositions, which equals expense for both sides, leading to compromise by both parties.
One of my most significant pieces of advice for parties entering mediation is to listen. Often the parties are so focused on their own version of the facts and circumstances, they fail to see opposing views. Part of the mediator’s job is to try and make both sides see the case from the opposite viewpoint. In my over twenty years of practicing law, I have learned that you never know what a jury is going to do, what facts they are going to cling to, or whether they are even going to like you.
So while mediation is an integral part of the litigation process, it is vital to have experienced litigation attorneys on your side like the Hickory car accident attorneys at the Law Offices of Jason E. Taylor, PC, to help guide you through the litigation and mediation process.