When someone is injured in an accident in Massachusetts and the accident was caused by someone else’s negligence, the injured party has the legal right to seek financial compensation for their injuries and damages. The pursuit of financial compensation is made by way of a personal injury claim or lawsuit. Many personal injury claims or lawsuits are eventually settled before the case gets to trial. Most settlements are reached at mediation. Below is an overview of the mediation and its process.
What is Mediation?
Mediation is an alternative dispute resolution process for legal cases, which is non-binding. It’s where the parties to the legal dispute (i.e., a personal injury negligence claim) come together before an unbiased mediator in an attempt to resolve the dispute and try to find some common ground to settle the case. For example, someone injured in a motor vehicle accident may agree to go to mediation with the other driver’s insurance company to try and settle the injury claim as opposed to go to trial.
This dispute resolution process is completely voluntary. There is no requirement to participate in a mediation and the defendant or insurance company cannot force or compel the plaintiff to go to mediation.
Who Attends the Mediation?
Generally, all parties and their lawyers will attend the mediation and, of course, the mediator. In personal injury cases, typically the insurance adjuster from the insurance company will be present. In some cases, the defendant will not be present, because they will not be making the settlement payment. The insurance company will. For this reason, in personal injury cases, you would want the insurance adjuster to be present. Also, you would want the insurance adjuster to hear the mediators view and opinion of the case. This is almost always beneficial to the plaintiff and reaching a settlement.
Who Serves as the Mediator and How is He/She Chosen?
Once the parties to the legal dispute agree to mediate the case, they will then select a mutually agreeable mediator. Mediators are neutral and should not know or be associated with any of the parties to the lawsuit.
Mediators are often former judges or lawyers that have many years of experience in a certain area of law. For example, in a personal injury lawsuit stemming from a car accident, the parties would want a mediator that is experienced with car accident cases and injuries. A mediator in that situation should be a former judge or lawyer that has heard or handled many car accident cases. This way, the mediator will be very familiar with the legal issues that may be present in the case and know how to effectively deal with them.
The effectiveness of mediators varies from mediator to mediator. For this reason, you should hire an experienced Massachusetts accident lawyer, who is familiar with mediators, so he/she can negotiate for the selection of a mediator that will be beneficial in moving the case towards a favorable settlement.
What Happens at a Mediation?
Mediation is an informal process that will generally take place in a neutral location, such as the mediator’s office. At the beginning of the mediation, all the parties to the case, their lawyers and the insurance adjuster will meet together in one large conference room. The mediator will often welcome the parties, introduce himself/herself and explain the mediation process.
Next the parties (plaintiff and defendant), through their attorneys, will make an opening statement. This statement will include a summary of the facts of the case, the damages suffered (e.g., the injuries suffered, medical bills incurred, lost wages or earnings, pain and suffering) and any other legal issues involved in the case. The defense or insurance company will usually address any mitigating circumstances or defenses.
Then, the parties will separate to different rooms and the mediator will meet with each party separately to discuss the pros and cons of the case. The mediator often explains his or her view of the facts and injuries involved and offer their opinion on the realistic value of the case. The mediator will then go back and forth between the parties’ separate rooms and try to help both sides reach an agreement.
It is not uncommon for both sides at a mediation to feel somewhat slighted by the mediator’s opinion or the mediation results. Often an insurance company feels it is offering or paying too much and the plaintiff may feel he or she is not receiving enough. One good thing about mediation, however, is that it is not binding upon the parties. This means if either party is not satisfied with the mediator’s recommendations or offers made at the mediation, they are not bound it and can leave the mediation and continue to litigate or go to trial.
Settling a personal injury case at mediation is regarded as a safe way to resolve the case, provided the plaintiff receives a fair and reasonable settlement. Otherwise, the plaintiff would be leaving their case in the hands of a jury and sometimes juries are unpredictable. In some cases with compelling facts and injuries, a jury trial may be the way to go. In other cases, the plaintiff may want to go to trial and mediation offers a great way to fairly resolve the case. This is when having an experienced injury attorney is invaluable. An attorney experienced with mediations and personal injury trials will be able to suitably advise his or her client to make the best decisions.
Have You Been Injured in an Accident in Massachusetts?
If you have suffered injuries in an accident in Massachusetts, you may be entitled to financial compensation. You most likely have many questions about your legal rights and options. If so, feel free to call us at (508) 879-3500 or contact us online to schedule a complimentary meeting and case evaluation. We will explain what your legal rights are and how we can best help you.