Personal injury cases can resolve before a trial in several different ways. Sometimes—often before filing a lawsuit—lawyers will negotiate directly with an insurance adjuster. When this fails to generate a fair settlement amount, we typically begin litigation (filing a lawsuit), develop the evidence through discovery, and schedule a trial date. As that trial gets closer, the defense often suggests a mediation.
What is mediation? It’s a non-binding settlement conference. Mediation is a process whereby the parties and their lawyers work with a mediator to try and resolve the case. By this point, both sides typically know what the trial evidence will be, and based on experience, can anticipate the range of potential outcomes if a judge or jury decides the case for you.
The mediator is usually a retired judge, but sometimes practicing or retired lawyers serve as the mediator. Most of the time, they charge an hourly rate for which the parties split the cost, though some free options do exist. The mediation begins with a joint session where each side may summarize their case (usually done in an advance memo to the mediator). After that, the parties attending the mediation split into separate rooms while the mediator goes back-and-forth, exchanging offers and demands along with other information the parties wish to share or argue. Mediators serve as neutral facilitators. Their job is to persuade each party to move closer. They generally try to avoid forcing the moves.
Instead of strong-arm tactics, the mediator typically tries to get each side to think about the strengths and weaknesses of their case, from a judge’s or jury’s point of view, in hopes that each party will move further towards a common number. The injured person doesn’t want to lose more money; the defendant (or insurance company) doesn’t want to pay more. As leverage, the best mediators know how to get each party to consider risks that they may not be thinking about. The biggest advantage is that each party gets to decide what to do, and so the outcome is voluntary. If it works, the case is over and the prompt resolution of the dispute is guaranteed.
There are other advantages to mediating a case. These include saving on the costs associated with taking a case all the way to trial. While mediators are often paid for their time spent on a case, mediator fees are significantly less expensive than the costs of a trial. Mediations are also less time-consuming than jury trials, which often last for several days. In addition, a mediation gives the parties control over the outcome that isn’t present when a case goes to trial and strangers make the final call. Almost always, people prefer this because it avoids the uncertain risk of waiting on a verdict, and the possibility of appeals by the losing side that can stretch a case out for a long time. When you’ve been injured, and you’re coping with lost money, time, and energy, the time value of a payment delivered now certainly matters.
One other advantage to mediation—even when the case does not settle at all—is that it allows both sides to have a full and frank but confidential discussion of the case without fear that such discussion will later be evidence at trial. Virginia law encourages mediation by making most communications made at or in connection with the mediation confidential. See Va. Code § 8.01-581.22. There are some limited exceptions to this which rarely come up, but good lawyers are careful to control. And, in practice, most cases do resolve at a mediation, and both parties can walk away knowing they found enough common ground to resolve a case.
The trial lawyers at Munro Byrd have extensive experience with mediation. Our lawyers have participated in several mediations involving personal injury, car accident, trucking accident, medical malpractice and wrongful death cases. We also have resolved numerous commercial contract or business disputes between parties who believed they couldn’t agree on anything! We have resolved many cases for clients with mediation, and do our very best to put our clients in the strongest position to extract the money they need and deserve.
If you have a personal injury claim or any dispute you need to resolve, please call us to evaluate your options. We are here to help guide you through the process.
We cannot promise similar results in all cases. We litigate such cases throughout Virginia, including in Roanoke City and County, Montgomery County (Christiansburg, Blacksburg), Lynchburg, Abingdon, Martinsville, Rocky Mount, Wytheville, Bedford, Covington, Harrisonburg, Richmond, Charlottesville, Lexington, or Staunton. We practice in rural areas like Bath County, Campbell County, Giles County, Craig County, Smyth County, Alleghany County, Pulaski County, Franklin County, Campbell County, Carroll County, Patrick County, Floyd County, Stuart County, Pittsylvania County, Henry County, and Wythe County. We also litigate in Virginia federal courts, including those divisions in Roanoke, Abingdon, Danville, Harrisonburg, Charlottesville, Alexandria, and Richmond.