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Mediation

An Alternative Resolution to a Conflict

Mediation is an alternative resolution process. Parties get together, explain their views and try to come to a settlement (fault, damages, injury amounts, etc).

Private Mediation is often expensive. A mediator needs to be paid, which is often a retired judge or an attorney.

Mediators can charge $1,000 plus for one day of mediation, regardless of whether the case settles or not.

There is no mandatory mediation as this is a voluntary meeting between the parties. In many jurisdictions, when you file a lawsuit, they send you a mediation schedule.

Many attorneys do not even respond to this or call to explain that they will not attend.

This type of mediation is often a “public mediation” which is free to the parties (cheaper for the court to have you settle than to go ahead with a full lawsuit).

Mediation is a good solution if you are dealing with an insurance company that is not paying all medical bills. They believe that you are over treating and they want to pay a reduced amount of the bills.

Usually both parties agree to a mediator beforehand and agree on who will pay for the expense.

Most of the time they split the cost in half but this agreement is often modified in the actual mediation (i.e. I will settle for that amount, but only if you pay 100% of the mediation costs today).

Because there are usually insurance companies involved, they have the power to pay and “craft” a settlement anyway they want.

It is important that you consider going to an attorney before you go to mediation.

It is better if the attorney can come with you as you will probably need more advance legal skills to “knock down” the other insurance company’s arguments and attacks.

The way a private mediation works is that both parties prepare different files and present them to the mediator before the mediation meeting.

The mediator reviews the files beforehand so she/he knows what the case is about.

At the mediation meeting, the parties are split into two different rooms. The mediator goes back and forth between rooms.

It is an interesting dynamic because the mediator listens to your side, helps you make your arguments clear, and goes and presents them to the other side. Then she helps the other side prepare a response and bring it back to you.

There are other ways to conduct a mediation meeting. Some mediators like the round table approach. Everyone says what they have to say for the other side to hear.

It is harder to argue and to evaluate each point and it can become a “pointing finger” contest. You can talk to your attorney and see what kind of mediation technique would serve your case better.

I have been involved in many successful mediation meetings, but also in many unsuccessful ones.

Usually, insurance companies know if something is within settlement reach or if the case will end up in court.

If the case is within settlement reach, the mediator might be able to get both sides to come to a point of compromise that works for both.

If the case is not within settlement reach, the insurance company will probably decline to mediate.

Mediation is a meeting that will not have an effect in a later case (unless the case settles). No settlement offers or negotiation statements will be allowed in court.

This is because courts want to encourage settlement and they do not want the parties to be afraid of not disclosing or negotiating at large because this will come back as evidence in a court of law.

The risk is that you do not settle and end up having to pay for half of the mediation (some attorneys will pay for this), and still have to go to court.

Also, if you are going to mediation, you will be looking at making very significant “sacrifices.” Therefore, if you are at that point in the negotiation process or feel like you cannot be flexible, then mediation is not for you.

On the other hand, you can get a settlement check that day (or the day after), which can save you from higher legal bills and have the matter finalized.

Mediation agreements are binding and cannot be appealed or be taken to court (unless they do not pay you).

It is very important to be satisfied with your settlement because you cannot bring this up later. 

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