What is Mediation?

No one ever imagines that they will be involved in an accident that results in injury, let alone mediation or trial to recover for their damages sustained in the accident. Sometimes an injury claim will not go to court and may be settled through mediation. Making the decision to mediate is best left to your lawyer, taking into account various strategic factors. It may be helpful for those who have been injured to be familiar with the “Do’s and Don’ts” that a skilled South Carolina injury attorney is likely to adopt in the mediation process.

Mediation is a tool used by lawyers in which the parties to a controversy sit down with each other to talk about the claim and try to reach a resolution. It is a voluntary process in which a third-party neutral “mediator” facilitates settlement discussions between parties with the goal of resolving the dispute while it is still in the control of the parties and without the expense of trial. As soon as everyone has fairly complete information, a potentially successful mediation can be scheduled. Sometimes, filing a lawsuit is necessary to utilize the formal discovery process to obtain the information needed to completely evaluate a case and to put the case in the best posture for successful negotiations.

In a recent article, Frederick I. Hall, III of Hall & Sanders gave the following pointers for making a successful mediation:

• Give the insurance carrier everything at least 30 days prior to a mediation.
• Mediate at a pivotal point: you have all of the information needed to evaluate the case, but there is a pressure point where the carrier and client both have something to gain by coming to the table to talk (i.e. they will save money on expensive trial depositions; mediation will occur before unpredictable depositions that could go either way to break the case for one side or the other).
• Carriers expect a high initial demand (within reason). Do not come off of that demand in increments that are much larger than the increments the carrier comes up on its offer. Most mediations have an unspoken script of working to meet in the middle–be very careful not to stray from that format.
• Leave plenty of time for trial preparation if the mediation fails; try to avoid mediations too close to trial.

See Frederick I. Hall, III, “Do’s and Don’ts for an Effective Mediation”, The Justice Bulletin, p. 22, Fall 2009.

In our practice, we can push the collection of information and have mediations as soon as all of the information is available for the insurance company to evaluate. Here are some additional rules of thumb from Mr. Hall’s article:

• Give the insurance carrier everything at least 30 days prior to a mediation.
• Mediate at a pivotal point: you have all of the information needed to evaluate the case, but there is a pressure point where the carrier and client both have something to gain by coming to the table to talk (i.e. they will save money on expensive trial depositions; mediation will occur before unpredictable depositions that could go either way to break the case for one side or the other).
• Carriers expect a high initial demand (within reason). Do not come off of that demand in increments that are much larger than the increments the carrier comes up on its offer. Most mediations have an unspoken script of working to meet in the middle–be very careful not to stray from that format.
• Leave plenty of time for trial preparation if the mediation fails; try to avoid mediations too close to trial.

The information relayed in this blog is for educational purposes only and is not legal advice. The cases referenced and explained by the blog’s author(s) are for informational purposes only and are not intended to imply that certain, or similar, results may be achieved in each client’s case.