In Texas, court-ordered mediation in tort cases is an increasingly common occurrence. If you are in litigation, chances are the judge will order you to go through a court-ordered mediation process before you can proceed to trial. Consequently, it is important to understand how mediation might impact your personal injury lawsuit.
A More Informal Setting
First of all, the mediation setting is very different from a trial. There is no judge and no jury, only a mediator. The mediator is impartial and works to find compromises. Both sides informally present their versions to the mediator, in the presence of their attorneys, but without the constraints of the court’s procedural or evidentiary rules. After hearing from both parties, the mediator explores settlement options. If the parties cannot reach an agreement, there is no consequence, nor will the mediator issue a judgment. Rather, the mediator refers the case back to the court.
How Do You Prepare For Mediation?
Given these differences between mediation and litigation, is it important to prepare for the mediation conference? In the context of personal injury law, that answer might be yes. The reason is the insurance company. Although the defendant will generally have his or her own attorney, the insurance company may be present or closely following the plaintiff’s presentation to the mediator.
Could Mediation Induce A Favorable Settlement?
Although not required, the plaintiff’s attorney could present their theory of the case just as persuasively as if they were at trial. This might include using visual exhibits such as photographs or digital technology. If the presentation is very compelling and personalizes the plaintiff’s pain and suffering, the insurance company might decide it is in their best interest to offer a settlement at the mediation, rather than playing their odds against the jury.
Source: FindLaw, “What is Mediation And How Does It Work?” copyright 2018, Thomson Reuters