In all civil actions filed in superior court, mediation is mandatory and commanded by court order. Mediation is a settlement conference attended by all parties and their attorneys. The mediator is an uninvolved individual who presides over the settlement conference. If the parties cannot agree to a mediator, the court will appoint the mediator who conducts the mediation.
Mediation is truly an opportunity to settle a contested claim. The first portion of the settlement conference is a gathering of all parties and counsel. Here, both sides will present a summary of their claims and defenses to the mediator. Thereafter, all parties will be separated and the mediator will then move from room to room to speak privately with each individual party to the lawsuit. The mediator’s goals are to ensure that all voices are fairly heard and considered and to bring the parties to a mutually acceptable settlement if possible. While the mediation is mandatory, settlement is not. The parties are simply commanded to attend the meeting in good faith and make an effort to settle their claims and resolve the lawsuit through private compromise.
As a former claims adjuster and former insurance company lawyer, I encourage accident victims to carefully present their cases at mediation and to be very patient with the process. Use this opportunity to demonstrate the strength of your case. Highlight the trial evidence and show an ability to tell your story with passion. Even if the case is not settled, you should leave a strong impression on the defense. Understand going into the mediation that, while settlement may be achieved, it is often wise to impasse negotiations and leave the mediation without a settlement. This move should not be made on emotion. Rather, if the defense clearly will not extend offers that fall within the likely verdict range, the strength of the plaintiff’s position and legal leverage is served by abandoning the negotiations commanded by the court. If the plaintiff’s position on legal liability and damages is appropriate and if his or her demand for damages is achievable at trial, the insurance adjusters and insurance defense attorneys who attend mediation will not be able to ignore these factors. If they realize that the plaintiff is not anxious to settle, this may motivate a reevaluation of the case by claims supervisors and defense counsel following the unsuccessful mediation.
The unrealistic victim should also be cautioned. If reasonable offers are extended in mediation and rejected, expect the defense to bear down hard on all evidence, increase their efforts in discovery, and to use the offer of judgment to shift their defense costs to the plaintiff. If a fair offer is extended during the mediation, the greedy plaintiff may deeply regret stonewalling and rejecting the settlement opportunity. Through an offer of judgment, the defendant can financially punish a plaintiff who refuses a fair offer and forces an unnecessary trial.