As a personal injury case moves through the litigation process, at some point your attorney or the courts may suggest mediation. In New Jersey, mediation is not a required part of litigation in personal injury cases, but it can be helpful, especially when both parties agree to all the facts, and are only deadlocked about the value of the settlement.
What Is Mediation?
Mediation is an informal process in which both parties meet with a neutral mediator and discuss their settlement issues. The mediator will make suggestions as to how the parties can reach a resolution of their differences and work through them with the parties.
The goal in mediation is for both sides to participate in the process. Rather than having a judge decide unilaterally that one side must win, and one side must lose, the mediator helps both parties find common points of agreement and make concessions to the other so that both sides come out feeling comfortable with the deal.
The advantage of mediation is that it is less expensive than taking a case all the way to trial, and it lets the parties negotiate on equal ground. The mediator is not there to decide who is right or wrong, but only to facilitate an equitable settlement.
What Are the Pros and Cons of Mediation?
There are many advantages to mediation in personal injury cases, provided both parties agree to the procedure.
- It can resolve the issue in one or two mediation sessions. If the only issue to be resolved is the amount of the settlement, it can end the case quickly, without taking months or years waiting for court dates.
- It is less expensive. Because the mediator’s fee is split between the parties, there is no additional cost to one party or the other, and it is cheaper than the cost of continued litigation.
- It humanizes the parties. If you have felt like the insurance adjuster has not really understood your problems because they have never met you, this may let you explain your difficulties directly to them.
- It gives the parties control over the outcome. Rather than letting a judge or jury rule on who is right or wrong and make a decision, the parties can offer their own opinions about what they believe should be done in the case, and what they feel is the correct solution.
Mediation is not always the best solution for personal injury cases.
- If the parties are not in agreement about mediation, the mediator will typically not agree to the process. Both parties must want to participate in the mediation for it to be successful.
- If there are genuine issues of fact that must be decided, mediation cannot be used. If there are questions about who caused the accident, for instance, the mediation cannot resolve this matter.
- If the parties are too far apart on the settlement, the mediation may be futile.
- Finally, if one party is negotiating in bad faith, the mediation will fail.
Your attorney will discuss these pros and cons more fully with you before any mediation is undertaken. If both of you believe that mediation is the proper solution for your case, you should proceed with the negotiation.
Is Mediation Legally Binding?
Mediation can be made legally binding after both parties reach an agreement. The mediator will write down the agreement and have both parties and their attorneys sign it. The mediator will notarize it, or have it notarized. At this point, although the agreement is a legally binding contract, it is not the end of the lawsuit.
One of the attorneys will write a Stipulation for Judgment incorporating the mediation agreement and send it to the judge who was assigned to the case, requesting that the judge make this the final judgment in the case. Once that has been done, and the document is signed by the judge, the mediation agreement will be the judgment on the case and will be binding on all parties.
How We Can Help
Anyone can enter into mediation with any other party for any reason. If you are involved in a lawsuit and the opposing counsel has suggested mediation, you may want to consult your own attorney before making any decisions.
If you have a personal injury case, you need legal assistance. Contact the New Jersey personal injury lawyers of Brach Eichler Injury Lawyers at (973) 364-8300 and we will provide a confidential consultation regarding your case. If we determine that you need mediation at any point in the process, we will recommend it, and be at your side throughout negotiations. Contact our legal team today.Written by: Brach Eichler Injury Lawyers Last Updated : March 21, 2023