Many personal injury cases are referred to mediation, either by the judge or by agreement of the parties. It can be a useful procedure and very often results in settlement of a case by mutual agreement of the parties.
What is mediation?
Mediation is an informal process in which an impartial person (the mediator) works with the parties and their attorneys to attempt to resolve or settle the lawsuit in a manner acceptable to both the Plaintiff and the Defendant. The goal of mediation is to allow the parties and their counsel (rather than a judge or a jury) to decide the outcome of the case.
What does the mediator do?
The mediator will lead the discussions between the parties and their attorneys. Sometimes these discussions will be with everyone in the same room. At other times, the mediator will speak with each side (attorney and client) alone.
The mediator is usually an attorney, but will not give you advice or opinions about your case or the merits of the opposing side. Your attorney will give you such advice and opinions.
What happens to my case if we do not settle?
Neither side is required to settle the case at mediation, but you should come to the mediation willing to discuss the possibilities of settlement. Your case remains on the Court's schedule as it had been before the case was referred to mediation. If you do not settle your case, then the case will continue on the schedule defined for it by the Court.
Who must attend?
All parties, their attorneys, insurance company representatives, if any, and any other party necessary to settle the case ordered by the Court to attend the mediation. An attorney or other individual chosen by a party may participate in the mediation.
Can the other side reveal in Court what we say during the mediation?
Unlike a trial, mediation is conducted in a private setting. Ohio law protects mediation communications from disclosure in court proceedings. Certain legal exceptions to this protection exist, such as threats of harm, admissions of crimes, and admissions of abuse. Generally, no one who participates in the mediation may reveal mediation communications in any court proceeding unless both the speaker and all the parties agree. If the parties want to be sure that no one reveals mediation communications outside of the court setting, they may enter into a confidentiality agreement before the mediation. The mediator will not discuss your case with anyone, including the judge, except to say that you met and whether an agreement was reached.
Why should I consider mediation?
In mediation, your attorney and you will help define possible solutions. Both sides work to construct a resolution that more effectively meets the needs of each side. If you do settle, then you eliminate the risk of losing your case or getting a judgment that is less acceptable than an agreement negotiated by your attorney with your input. If you settle your case, you save money and time that would be necessary for a trial. Mediation is non-confrontational, unlike a trial, and it is shorter and less formal. If you choose to go to trial, then you must accept the judge or jury's decision, unless your attorney advises you that an appeal would be appropriate.
How should I prepare?
Before the date of the mediation, talk to your attorney. Together, you should think about what your goals are; what has kept you from settling; what criteria you will use to evaluate offers presented at the mediation; and what the other side is likely to need to resolve the case. You should also evaluate the strengths and weaknesses of your case, the costs of going to trial in time and money, and the potential risks and outcomes of going to trial. The time required to conduct a mediation varies by case, and can be anywhere from an hour or two to all day. You will not give testimony or answer questions like at a trial or deposition, but you should expect to discuss the case with the mediator during the private conference portion. Your attorney is present with you at all times.