According to Webster, Mediation is an “intervention between conflicting parties to promote reconciliation, settlement, or compromise.” (sub-section a). Put another way, mediation is where parties come together with a third party to try and resolve a dispute. In Arizona, mediation is used in personal injury cases (also known as accident cases), to resolve conflicts between the injured party (the “Plaintiff”) and the insurance company representing the person that caused the injury (the “Defendant”). This post seeks to explain the benefits and negative sides of mediation to give those who have been injured an understanding of what to expect.
Who attends a mediation?
Usually in an Arizona personal injury case, there are three parties to the mediation. The injured party will attend the mediation with her or his attorney. The insurance company representative will attend the mediation with its attorney. And there is a third-party mediator. It is worth noting that the person that actually caused the accident is usually not present at the mediation. There are exceptions to this, for instance if both parties claim the other caused the accident, but in the vast majority of cases they are not present.
What is a mediator?
A mediator is a “third party neutral” that is not involved in the case. In Arizona. Under the Arizona Rules of Civil Procedure, the judge will order the parties to participate in a court-sponsored settlement conference, or, if the parties agree, they can participate in private mediation. A court-sponsored mediator and private mediator both have pluses and minuses.
A court-sponsored mediator is someone the court appoints to mediate. This person is known as a “judge pro tem” and is one of several volunteers that has volunteered to help the court with settlement conferences. There is no charge to the parties with a court-sponsored mediation which is the major benefit of the system. The major downside of a court-sponsored mediation is you do not have any say on who the judge pro tem will be and they may not be effective in settling the case and/or may not be familiar with the type case before them.
A private mediator is someone the parties pick to try to resolve the conflict. There are private mediators that offer their services, and you can pick a mediator based on subject matter so they will know your case. Private mediators are usually retired or semi-retired attorneys, or maybe a retired judge. They make a living helping parties settle cases, so they are motivated to get the case resolved. The disadvantage of a private mediator is the cost associated with mediation. It can cost thousands of dollars to have a mediator help you resolve your case. While this should not be taken lightly, one should keep in mind that this payment can ultimately come out of settlement proceeds and a private mediation is usually more successful than court sponsored mediation. I have participated in both court-sponsored and private mediation and without a doubt I have settled more cases in private mediation.
Where is mediation conducted?
Before the Covid-19 pandemic, most mediation took place in-person at the mediator’s office. All parties would have to travel from wherever they lived to a set location. The insurance company’s attorneys would have to bill their time to the insurance company for this travel. Coordinating a time and place for an in-person mediation was time consuming and sometimes difficult if parties lived out of state or were on vacation.
Since the Covid-19 pandemic, coordinating mediation has gotten significantly easier. One of the silver linings of Covid was the acceleration of on-line meetups. Now, mediation is often conducted via Zoom or Teams platforms and the parties can attend from the comfort of their own homes or from wherever they are in the world. Insurance company attorneys no longer have to bill for travel to the mediation and coordinating schedules is much easier. If one of the parties lives out of state or is on vacation, mediation can still go forward so long as all parties have an internet connection. Mediation has become significantly more efficient in the post-Covid world.
Will I have to talk to the other side?
Usually, you will not have to interact with the other side. The mediator may address all the parties in one place at the beginning, but you will very quickly go into another room with your attorney (if it’s an in-person mediation) or be put into a “breakout room” if you are on an online platform. You will have privacy so you can discuss the mediation confidentially with your attorney.
Why is mediation necessary and/or useful?
Mediation is necessary because the parties have not been able to resolve the case. It is useful because it allows an unbiased third party to review both sides of the case and point out the good and bad of the case. The mediator can evaluate the case and help both parties come to a resolution. It is important to remember that mediation is often the last time the parties can resolve a case prior to going to trial. Trial is incredibly expensive, time consuming and stressful. At trial, you are putting your faith in the jury and do not have control over the outcome. Mediation is usually your last opportunity to control what happens with your case.
What should I know about mediation before participating?
There are a few major things to know before going through with mediation. You should be prepared for the mediator to point out flaws in your case and play the devil’s advocate. That’s ok. That’s her or his job. You want to know what a third-party neutral thinks about your case. If you go before a jury, they may have the same thoughts.
It is also important to remember the mediator is doing the same thing to the other side. You should not feel like the mediator is against you. Again, it’s their job to push back against both sides. They are doing this to both parties to try and get a resolution.
You do not have to settle the case. You can reject any settlement and go forward with trial. Mediation seeks to come to an agreement where both parties both get and give something. Mediation is a great way to resolve an accident case without having to deal with the time, stress and cost of a trial.
If you do settle the case, you will not get everything you want. Mediation involves compromise. You should not expect to get everything you’re asking for if you participate in mediation. Mediation in the legal space is the same as in the regular world. You make compromises every day with your spouse, children, co-workers, bosses, neighbors and/or a host of other people. Keeping this in mind will put you in the right place when participating in in mediation.
Conclusion
Mediation is a great way to resolve personal injury or accident litigation. There are pluses and minuses to the different types of mediation as well as to accepting or rejecting a settlement in mediation. However, participating in mediation is the best way to resolve your case yourself before you turn over your fate to a jury.
Fowler St. Clair handles accident cases (including car accident, semi-truck accident, slip and fall, premises liability and other cases) and is here to help. If you have any questions about the legal process or think you may have a case, you can always reach out and one of our trusted team members can discuss your potential personal injury case free of charge.