What is Mediation in a Personal Injury Case in Virginia, Carolina or Beyond | Shapiro, Washburn & Sharp

mediator, mediation, injury, lawyerMediation is a process which can help the parties in a civil lawsuit reach an agreement through the use of a neutral person trained in problem solving instead of going to trial. This practice is growing in popularity. In the early 1990s, Congress mandated federal agencies create mediation programs. In addition, many employers and consumer product companies have mediation and arbitration clauses in agreements.  In North Carolina, mediation prior to trial is mandatory. In Virginia, the process remains voluntary.

Our Virginia injury firm has extensive experience with mediation in civil cases. We ask the defendant to agree to voluntary mediation in many serious injury cases, and often prepare a power point or graphics presentation as well.  At times, we interview important witnesses, edit the interviews, to provide the other side’s attorney and claims adjusters an accurate preview of the evidence to be presented at any trial, if a settlement is not achieved.

But if you’re our client we want to make sure you are fully informed about every step of the legal process. So here is a guideline as to what mediation is exactly…

Who can be a mediator in a civil case?
In some states, judges will serve as mediators when requested to do so by the parties. A mediation with a judge is sometimes called a “settlement conference.” In most cities and counties, there are private mediators who provide mediation services in civil cases.

If a private mediator is used, the parties decide who will serve as the mediator. Usually, the mediator has no prior relationship with either party. Most private mediators in civil cases are lawyers or retired judges with special mediation training and experience.

Mediation v. Arbitration

Mediation should not be confused with arbitration. In arbitration, the decision of the arbitrator on the prevailing party, and on the amount that should be awarded, may be binding. The mediator does not evaluate what the claim value should be. Instead, the mediator works with both sides to arrive at a settlement.  A mediator will not usually advise the parties what the value of a claim is unless the parties are unable to achieve a settlement, and if both sides specifically request that the mediator do so.

What kind of civil cases are mediated?
Any type of civil case or issue in a civil case may be mediated so long as the parties agree it should be mediated. In addition, mediation is available before a lawsuit is even filed. The courts encourage mediation of disputes in civil cases.


What is the cost of civil mediation?
If mediation is successful, the cost of resolving the dispute is usually substantially less than if the case goes to trial. Private mediators generally charge by the hour. Many cases are resolved in several hours.  The mediator may initially request that each side pay a deposit equal to half of the expected fee, but the parties may later negotiate for a different payment schedule. Usually the plaintiff and defendant equally split the mediator expenses unless a different agreement is negotiated.

What is the procedure in civil mediation?
The mediation process is flexible. Cases mediated by a judge usually take place at the judge’s office in the courthouse. Cases mediated by a private mediator may take place at the office of the mediator, at the office of one of the attorneys, or at another place agreed to by the parties.

The entire mediation process is confidential. The reason for this rule is to allow the parties to engage in frank discussions without concern that what they say in mediation will later be used against them in court if the case does not settle.  No matters revealed in mediation (that were not already disclosed elsewhere) may be used by either party at a later trial.

What happens at the end of civil mediation?
If the parties reach an agreement, the parties’ lawyers or the mediator will usually draw up a written agreement that the parties sign before the mediation is over. If the agreement is complicated or there are minor details that remain unresolved, the mediator may assist the parties in preparing an agreement for all the parties to sign at the mediation, with the understanding that the parties’ lawyers will prepare a more formal agreement after the mediation is over. Usually the lawyers for the parties prepare the final documents which may include more formal “release documents”.

If the dispute is not settled in mediation, then the case may proceed to trial before a judge or jury. The mediation will not be disclosed to any jury. Anything that was said in the mediation is confidential, so when the case comes to trial, the judge and jury do not hear about settlement offers or anything else that occurred in the mediation.  Also, the mediator does not make any type of report to the trial judge either.