Most personal injury and wrongful death cases do not go to court. Fewer make it all the through a jury trial. Plaintiffs usually agree to accept a settlement offer before entering a courtroom. A smaller number of cases are resolved via a negotiated settlement before the trial concludes.
Mediation is also becoming an increasingly common alternative dispute resolution process. In layperson’s terms, it allows injured individuals or the families of wrongful death victims and insurance companies to bridge the gap between failed settlement negotiations and a jury trial no one wants.
- 5 Reasons to Speak With a Virginia Personal Injury Attorney Before Accepting an Insurance Company’s Settlement Offer
- When Is Mediation Mandatory for Personal Injury Lawsuits in North Carolina?
- What You Should Know About Selecting Jurors for a Personal Injury Trial
Attempting mediation is completely voluntary in Virginia. There are also no set rules for when mediation talks can start, when they must end or even whether they can be initiated, dropped and resumed. In our own practice as Virginia personal injury and wrongful death attorneys, we have seen the process succeed and fail. What we can say with certainty is that mediation is often worth trying because it gets both plaintiffs and defendants discussing mutually acceptable solutions instead of merely dictating terms to the other side.
How Virginia Defines Mediation for Civil Cases
Mediation is an alternative dispute resolution (ADR) process in which a trained neutral mediator facilitates communication between the parties and, without deciding the issues or imposing a solution on the parties, enables them to understand and to reach a mutually agreeable resolution to their dispute. It helps the parties understand and recognize their underlying needs, overlapping interests and areas of agreement.
Unlike a trial or arbitration, mediations do not end with a decision being issued by a judge or arbitrator. The process is nonbinding and nonconfrontational. Plaintiffs and defendants speak with and through a mediator, trading perspectives and perspectives. The process may end with a settlement, an agreement to continue discussing matters or a declaration that mediation has failed.
When attempted, mediation follow rules spelled out in section 8.01-581.21 of the Virginia Code. That statute opens with these definitions
“Mediation” means a process in which a mediator facilitates communication between the parties and, without deciding the issues or imposing a solution on the parties, enables them to understand and to reach a mutually agreeable resolution to their dispute.
“Mediation program” means a program through which mediators or mediation is made available and includes the director, agents and employees of the program.
“Mediator” means an impartial third party selected by agreement of the parties to a controversy to assist them in mediation.
Retired judges often serve as mediators. In all situations, a mediator must be certified by the state.
We Take Mediation Seriously
Our personal injury and wrongful death attorneys prepare thoroughly for one- or multiday mediation sessions. We typically deliver a state-of-the-art audiovisual presentation to demonstrate to the insurance company that we are ready, willing and able to go to trial.
Cases in which we helped clients in Virginia secure mediated settlements involved
- A wrongful death at a railroad crossing where our client’s family member was hit by a train in his truck as his son in the vehicle following behind saw his father die before his eyes
- A wrongful death case where the client’s husband was killed by a delivery truck driver who slid into him on the shoulder of a highway
- A medical malpractice case in which a doctor’s mistake killed a wife
- A FELA lawsuit in which a railroad conductor had post-traumatic stress disorder and two knee surgeries as a result of a collision between two trains
The common element in each was showing the defense that they had no better option than honestly evaluating the strengths of our client’s claims for compensation before a jury ordered them to pay.