An Overview of Mediation in California Personal Injury

Many personal injury cases end up in mediation. Litigation is often expensive, time-consuming, and emotionally draining. Mediation is generally a cheaper, faster, easier alternative to litigation. Sometimes parties agree to go to mediation, and often judges refer cases to mediation. Mediation is a process in which a neutral third party facilitates communication and helps the disputing parties reach a mutually acceptable agreement.

Before mediation, the injured person, or plaintiff, meets with his or her attorney. The plaintiff and the attorney will discuss the case and decide on the lowest amount that plaintiff is willing to settle for. It is important to remember that the amount the plaintiff recovers will not be as much as the settlement amount. First, expenses such as attorney’s fees and costs must be deducted.

At mediation, several people are present: the plaintiff, the plaintiff’s attorney, the defendant’s attorney, the defendant’s insurance adjustor, and the mediator. Normally, the defendant’s insurer, rather than the defendant, has control over how much to settle for. This means that the defendant does not have to be present at the mediation. However, if the defendant is present, he or she can pressure the insurance company to settle, or can disrupt the mediation proceedings and make settlement more difficult.

The mediator is an impartial third party, with no connection to either side. He or she helps the parties communicate and reach a settlement. The mediator does not give either side legal advice, and does not take sides. Ideally, both parties will be able to agree on a mediator, but if they cannot, the court will appoint one.

First, the two sides and the mediator will meet in a joint session. With everyone in the same room, the mediator makes opening statement and explains the mediation process. Next, the attorneys make statements, arguing their cases to the other sides.

Then, the parties go to separate rooms, where they will remain for the rest of the mediation process. The mediator goes back and forth between the rooms and conveys information and settlement offers.

If the parties reach a compromise, they then must sign a settlement agreement. The agreement includes a release of liability, which means that the plaintiff agrees to give up his or her right to sue the defendant for injuries arising from the incident at issue in the mediation. The defendant usually pays the plaintiff within a month or so, which is much faster than a lawsuit. If the parties cannot reach an agreement, the plaintiff may then continue with a lawsuit.

Everything said in mediation is confidential and cannot be used in court. However, the information contained in statements made at mediation can be used against the parties. For example, if in mediation the plaintiff reveals information that leads to new evidence, the defendant can go get that evidence and use it in court. However, evidence will not become inadmissible simply because it is introduced at mediation.

The purpose of mediation is to reach a compromise. This means that neither side will get exactly what they want—the plaintiff will not get as much as if he or she won at trial, but neither will the plaintiff walk away empty-handed. One of the major benefits of mediation is that the parties control the outcome of the case, unlike at trial, where the jury or judge controls the outcome.

Often, a personal injury case can be resolved satisfactorily, quickly, and inexpensively through mediation. But it is important to have an attorney to guide you through the mediation process, so that the insurance company does not take advantage of you. If you have been injured because of someone else’s negligence or wrongdoing, please contact the passionate San Jose personal injury attorneys at Corsiglia, McMahon & Allard, L.L.P. for a free consultation.