Mediation In Personal Injury And Workers’ Compensation Cases
By The Elmore and Smith Law Firm, PC on November 2, 2019 | In Personal Injury
In the course of a personal injury case, the injured party will likely have to attend mediation if a lawsuit is filed. Mediation is a type of settlement conference where all parties to the lawsuit sit down with an independent mediator in an effort to settle the case.
Mediation conferences occur in all North Carolina superior court cases (where most auto wreck and personal injury cases are filed), as well as in workers’ compensation cases. Personal injury cases filed in federal courts are often ordered to mediation as well.
Who Must Attend?
All parties to the personal injury lawsuit/workers’ compensation claim must attend mediation. This includes the victim(s) in personal injury cases and the injured worker in workers’ compensation claims.
It also includes the defendants (e.g., the liable party(s) in personal injury cases and the employer in workers’ compensation cases). An insurance adjuster must also attend the mediation if there is insurance available to cover the claim. Most workers’ compensation cases and many personal injury claims involve insurance coverage.
In addition, the attorneys for both sides must also attend. Others who have an interest in the claim, such as lien holders or health insurance representatives, might also attend mediation.
What Happens At Mediation?
In personal injury and workers’ compensation cases, the parties will usually meet together with the mediator for an opening session. Here, the mediator will talk to both sides and explain the mediation process.
After the mediator speaks, the injured person’s attorney will discuss her side of the case. The attorney will likely discuss how the injury occurred or how the injured worker’s accident happened. The attorney will also discuss the injuries sustained by the accident victim. Next, the insurance company’s attorney will discuss their side of the case. It is improper to interrupt the other side when they are talking about the case.
Once the two sides have explained their positions, they will move into separate rooms. The mediator will take turns meeting with each side separately to discuss the strengths and weaknesses of their cases. Most importantly, they will discuss possible settlement offers to propose to the other side. The mediator will convey these offers to the other party.
Initially, offers to settle a personal injury or workers’ compensation case may be high (for the injured party’s side) and low (for the insurance company’s side), but over several rounds of offers, eventually the parties may reach an amount that they are both willing to agree to.
The process of mediation can take as little as 30 minutes or as long as a couple of days. Most mediations last about three to six hours.
Should An Injured Person’s Family/Support Persons Attend the Mediation?
Generally, it is permissible for family members and support persons of the injured person to attend the mediation. Doing so may help the injured person decide whether to settle the case or not. However, be advised that attorney-client confidentiality rules may be impacted if discussions are held in front of a third person.
What Should I Do To Prepare For Mediation?
An injured person should discuss the process with their attorney before mediation occurs. Wear neat but comfortable clothes. Dressy casual attire is appropriate for mediation. The injured person may also want to bring snacks and something to do, like a book or laptop, as there may be long periods of downtime when the mediator is meeting with the other side.
Who Is The Mediator?
A mediator is a person — usually an attorney — who receives special training in how to conduct mediations. Often, the mediator is also a personal injury attorney or a workers’ compensation attorney.
The mediator is selected by the parties in most cases. If the parties cannot agree on a mediator, or fail to select a mediator within the time allowed, the court will select a mediator for them. The mediator is not a judge and they will not decide the case. The mediator’s role is to help the parties talk about their case and reach a settlement if possible.
If I Don’t Settle, Can the Other Side Use Mediation Discussions Against Me?
Mediation and settlement discussions are not admissible in court, whether it be a personal injury case or a workers’ compensation case. This enables the parties to make concessions during settlement negotiations without the fear of consequences if discussions break down.
How Much Does Mediation Cost?
Mediation does have costs. Mediators usually charge an hourly rate and a flat fee to schedule the mediation. Typical fees range between $200 and $300 per hour.
In personal injury cases, both sides share equally in the costs of mediation. But sometimes, one side will agree to pay for the entire cost of mediation as part of the settlement. In workers’ compensation cases, the employer will pay the upfront costs of mediation, but the injured worker may have to pay her share of the costs at a later date.
What Happens If The Case Settles?
If the case settles, the parties will sign an agreement at the mediation outlining the basic terms of the settlement. The mediator will report to the court that the case is settled.
In personal injury cases, there is a second document, called a “release of claims,” which must be signed. Once the money is paid, the injured person’s attorney will dismiss the lawsuit.
In workers’ compensation cases, all settlements must be approved by the N.C. Industrial Commission. The employer’s attorney will draft a document called a “clincher,” which will discuss the settlement. After the injured worker signs the clincher, he or she will submit it to the Industrial Commission for approval. Getting this approval usually takes two to four weeks.
What Happens If The Case Doesn’t Settle?
If the case doesn’t settle, the mediator will report to the court that the parties are at an impasse. The case will then proceed forward toward trial. The case may still settle at a later date, but if not, the case will be determined by a jury (in personal injury cases) or by the N.C. Industrial Commission (in workers’ compensation cases).