What Is Legal Case Mediation?
As a Dedham-Westwood accident lawyer, I’ve been legal counsel for injury victims in countless cases. Many times, these cases can be settled through the process of what is called mediation. Most civil disputes can be mediated, including those that have to do with contracts, leases, small business, employment, and divorce. This post, though, will discuss mediation in the context of personal injury litigation.
First, exactly what is mediation? It is the process by which the opposing parties in a lawsuit or injury claim agree to select a mutually agreeable third party "neutral", called (appropriately) a mediator, who will study briefs and supporting materials that both sides submit, and attempt to bring the parties to a mutually satisfactory resolution to the dispute or claim involved. Licensed mediators in Massachusetts are attorneys who are required to undergo extensive specialty training and certification before they are allowed to hold themselves out as "mediators." Most all mediators in Massachusetts belong to a professional specialty organization, such as the American Arbitration Association.
In the process of mediation, you and the defendant (represented 99% of the time by a lawyer for a liability insurance company that insures the defendant) try to work out a solution prior to litigating the matter in court, before a jury or judge. The process involves the mediator meeting first jointly with both parties, then separating them into respective conference rooms, so that he or she can meet privately to discuss each party's positions in candor. (The parties are separated, after meeting initially together, to prevent arguing and a breakdown in communications, as these discussions can often become tense.) The mediator then "shuttles" back and forth between the parties, attempting to bring each side closer to an acceptable resolution. I remember long ago, when I was 20 years old, the first professional job I ever had was as a complaint mediator in the Massachusetts Attorney General's office - in the Consumer Protection Division. I loved it.
What’s the advantage of mediation over litigation and "going to court"? First, it means that the whim of a particular jury or judge will not dictate the eventual outcome. Plaintiffs need to remember: Juries can, very unfortunately, often be skeptical of injury claims. Second, if your dispute has undiscovered or undisclosed issues, mediation gives you the opportunity to uncover those issues and put them all “on the table” in full disclosure before you end up in court. Third, and some people say this is most important - a mediator does not "decide" a matter for one party or another -- he or she only attempts to bring the parties to a mutually acceptable resolution. If the parties cannot agree after mediation efforts, they can still proceed to litigate the dispute in court. The separate process by which a third party neutral hears both sides and issues a binding decision is called arbitration. That's for a separate post I'll write about later.
Yet another advantage of mediation has to do with confidentiality. With a few exceptions, information that is disclosed during mediation cannot legally be revealed outside the mediation proceedings or used later in court. One of the drawbacks of litigating in court is that everything testified to or submitted is available to the public. It is only by a judge's order that information can be "sealed" from public exposure. If you want to protect your privacy, trade secrets, or just avoid “airing your dirty laundry in public,” mediation will generally provide greater protection than litigation.
Effective mediation usually takes a full business day, sometimes spilling over into a second day. By comparison, lawsuits can often take many months, or even years, to resolve. Parties who choose mediation usually are more relaxed and open to compromise, which is always a good thing. As a Route 128 car accident lawyer, it is something I almost always recommend to my clients as part of the overall legal process.