Every lawsuit filed in a NC civil superior court is required to go through mediation. The fact that is it mandatory is the first thing people need to know about mediation. In layman’s terms, mediation is where the two parties (plaintiff and defendant) get together prior to trial to discuss the case and see whether it can be settled. Typically this is the best chance both sides have settling a matter before gearing up for trial.
Mediation should not be confused with arbitration. Arbitration in NC comes in two forms. In district court you do not mediate your case. You must go through the arbitration process. The ruling of the arbitrator is not binding and as such either side can appeal the ruling and try their case in front of a judge or jury. Further, the ruling of the arbitrator is not share with the jury. Arbitration also can occur when dealing with UIM claims via your own car insurance. Arbitration typically takes place in your attorney's office in front of a panel of one or three arbitrators. You can think of arbitration is an informal and less expensive trial. The ruling of the arbitrators for this type of proceeding is binding.
Mediation can be a long drawn out process and it can be difficult for the plaintiff to sit through. This will typically be the first time the plaintiff is directly confronted with arguments coming directly from the defendant’s attorney. The role of the plaintiff’s lawyer before mediation is to educate the plaintiff and to explain to the plaintiff what the defense's arguments will be, so they can prepare for the same. Mediation begins with the mediator asking the lawyers to summarize the case for him/her. After both sides have explained their positions the parties separate into different rooms. At that time the mediator will move from room to room discussing the case in greater detail. Further, the mediator will share with the parties what the other side is saying.
After a number of “rounds” the conversation typically switches from arguments and details to dollars. This is because both sides have flushed out the arguments of the case and the only question that remains is whether it can be settled. If the case is settled both sides will sign a settlement agreement memorializing the terms. Of course, a more detailed settlement agreement and release will be signed at a later time. If the case is not settled the next step is trial.
To be successful, mediation require significant preparation from the plaintiff’s attorney. Failure to properly prepare is one way to ensure an unsuccessful mediation and possibly less money for the plaintiff. Depending on the case I will typically write up a summary of my client's treatment and medical expenses following the accident. If liability is contested I will have a presentation on the facts of the accident as well as the law. You have to understand your cases weaknesses and prepare for the same. If you are not prepared for the arguments of the defense you run the risk of getting lower offers.
While the mediator is not a judge or jury he or she will give an unbiased opinion on how they feel the evidence will be perceived. There is value in this opinion since typically in a litigation case both sides have dug in. Sometimes both sides are unable to see the weaknesses in their own case. There have been occasions that a mediator will mention something their neither side has thought very important. This can result in one side or both taking a "new" look at their case.
Picking the mediator is very important. Picking someone who is not respected by both sides can result in a waste of time. Even if the mediator is making good points if that person is not respected he or she wont sway a party dug in. It is important to know the players in the county wherein the accident is filed. If you know who specific defendants trust, and you think they will be fair with your client they would be a good choice.
Different insurance companies treat mediation differently. For example I tell my clients that if we are dealing with Allstate, GEICO or Progressive their adjusters don't offer much money so mediation is typically a waste of time. It doesn't make sense to select an expensive mediator since those cases don't settle. Further, it doesn't make sense to spend valuable and limited time (or showing all of your cards) at the mediation. The last trial I had with Allstate as the insurance company it was clear they had failed to even talk with the listed witnesses on the police report. If they aren't going to speak with witnesses before making up their mind I am not going to do it for them. It is better to handle it in court.
Mediation is also helpful for the spouse of the injured plaintiff to attend. Usually the spouse doesn't have all of the facts of the case and only hears bits and pieces. They don't know the law or the negative aspects of the case. It makes it much easier to move forward when both spouses are on the same page.
Many times I am asked by clients if the case could settle after mediation. While the answer is yes what the client has to understand is that after mediation both sides gear up for trial. Thousands of dollars can and will be spent following a mediation getting ready for trial. Doctors will be deposed, trial exhibits will be created and arguments will be honed. Therefore, while the defense may increase their offer it may not offset the increased expenses incurred getting ready for the trial.
The last thing a client needs to hear from his personal injury lawyer following an unsuccessful mediation is new information regarding the problems with the case. The client needs to be completely informed to make the best decision regarding their case. If the client is not informed they can't make the best decision and it is a disservice by the attorney.