Mediation is an attempt to settle your case by using a mediator to help you better see the issues, strength, and weaknesses of your claim. The mediator will focus on the matters you want to be communicated to the other party and will do the same for the other side of the case. In the process, you will have the benefit of the mediator’s opinion, based on their litigation experience, as to the potential outcomes of your case at trial.
A Popular Settlement Tool
Mediation has become popular because it removes the uncertainty of a jury trial, and at the same time offers clients a hands-on involvement in understanding their case and perhaps settling it.
Most clients also appreciate the fact that it is non-confrontational. You will not feel pushed, badgered or antagonized in this process. The only people who will ask questions and make comments to you will be your attorney, the mediator, and your spouse (or another family member) if they join you.
The cost of the process is minimal compared to the potential benefit. Your half will typically run $1,200 to $1,500. By comparison, a written opinion from a doctor could cost $2,500 and may turn out to be worthless, or worse, detrimental.
There is a fairly standard procedure for mediation which includes the following steps:
- Meet and Greet. You will be seated in a separate conference area to be used by you and your attorney for the duration of the mediation. There, you will first meet the mediator and they will outline more specifics about how they intend on proceeding that day. Next, the other party, typically one or two insurance adjusters (with settlement authority) and their attorney (if one is involved), will be brought into the room for a short introduction and to shake hands. This is a very brief session, and they are then lead out of the room into a separate conference area where they will remain for the duration of the mediation.
- Tell Your Story. The mediator will typically then ask you questions about your injuries, surgery, therapy, and damages. This is an opportunity for you to “tell your story”. You need to be prepared for this, and your attorney can best advise you further in that regard. It is a very important part of the process because the mediator is not only learning about your situation but also about what kind of a witness you will be. The better you come across as a witness, the stronger your case will be in the eyes of both the mediator and the other side.
- Back and Forth, Offers, and Counter Offers. This process will pretty much consume the remainder of the mediation. As each counter offer is communicated by the mediator, he or she will typically explain the basis of that counteroffer, and what areas of the case the other side is concentrating on. In addition, the mediator will frequently offer ideas to increase the other side’s offer and/or enhance the negotiation process. A good mediator should make you feel understood, and gain your trust that they are working on your behalf to get the best settlement possible under the circumstances.
- Down Time. Expect that there will be periods of time, while the mediator is talking to the other side of the case when you will be left alone to wait for the next counteroffer or outcome. These passages of time can vary from 10 minutes to 45 minutes. Some of this time you will want to use talking to your attorney about issues and what your next move should be. Other times, you will simply be waiting. Typically mediations don’t last more than a total of four (4) hours. If you can’t reach an agreement in that length of time, typically it’s not going to happen at all.
- Settlement Agreement. If an agreement is reached between the parties, it is reduced to writing, on the spot, by the mediator and their staff. The written agreement is then signed by all parties and considered binding. If however, no agreement is reached, you simply leave the mediation site with no strings attached – except of course for the bill owed to the mediator.
There are some very specific rules to mediation which are set out in the “Uniform Mediation Act” in Nebraska law. The purpose of these rules is to protect you, and the mediator, from information that is shared during your sessions with the mediator. The intent of these rules is to allow you to be very open in discussing your case with the mediator so they can better assist you in this process. The major rules are as follows
- Confidentiality. All aspects of the mediation will be considered confidential, and no statement made by the parties or their attorneys in the course of the mediation will be offered by any party at any subsequent hearing or trial.
- Role of the Mediator. The mediator serves only to facilitate the discussion of the possible settlement of your claim. The mediator’s responses or statements made to the parties, will not constitute legal advice, as they will be designed solely to promote the continued discussion of the possibility of settlement of your claim. Also, the mediator will not be required to respond to any subpoena served upon them by any of the parties in any subsequent litigation related to the issues considered in the mediation.
- Settlement Discussions. The mediator will not disclose information supplied by any party in private conferences to the other parties in the mediation without express approval.
The actual cost of the mediation is limited to several aspects.
- Mediator Fee. This is a billable cost to the client. The mediator will charge by the hour (typically $225 to $275 per hour). This fee is charged for all time spent by the mediator on this project, including but not limited to: phone calls, correspondence, reading and reviewing materials, and the mediation itself.
- Fee Split. Each of the parties is charged one-half of the total fee. Your half usually runs $1,200 to $1,500.
- Attorney Expense. There may be some expense for your attorney’s travel, lodging, and meals. But, in a contingency case, no expense for your attorney’s preparation time or document production.
Keep in Mind
While the prospect of spending four hours in a mediation sounds like a very lengthy period of time – the time will pass quickly. For this reason, you should keep some things in mind in order to make the best use of your time.
- Your Day in Court Without the Gamble. This is your one chance to tell your story and look at the good and bad points of your case, without gambling everything in front of a jury. Juries are, by and large, unpredictable. You never want to be overconfident in your case – even if you can’t see or understand the weaknesses (every case has some). In the mediation setting, the most you will lose is the cost of the mediator’s fees. In a trial setting, you can walk away with nothing, but litigation expenses and a zero verdict.
- Your Records Are Your Evidence. Consult with your attorney to be sure that your records are complete up to the mediation date. If you recently received a medical opinion, for example, that record needs to be added to the mediator’s file before the insurance company will consider it. Unfortunately, your saying so won’t suffice.
- Your Opportunity to See Your Case Through the Eyes of the Jury/Court. Because you are the one who suffered the injury, and the medical treatment expenses, it may be difficult for you to step back and see your case the way in which the Jury will see it. For many, this is the most challenging aspect of mediation. Yet, it is one of the most important. In truth, the value of your case is determined by how the mediator, and the other side of the case, believe the jury will interpret the facts and evidence. Will the jury be inclined to give you a large verdict at trial, or is there something(s) about your case that will incline the jury to give you a small award or nothing at all? You shouldn’t be put off or offended by this, because this approach will help you determine a fair resolution.