Personal Injury Mediation Outcomes
Mediation is a confidential process by which a mediator – sometimes called a third-party neutral- attempts to reach common ground between the parties. The participants in a typical mediation conference are the injured plaintiff, the at-fault defendant, and although not a nominal party, the real player in interest, the insurance company. The conferences are confidential. The negotiating positions offered, and statements made by the participants are not admissible at a subsequent trial. Indeed, most mediators, who are typically older attorneys and retired judges, will have everyone execute a confidentiality agreement before anything else is discussed. Mediation conferences in a typical personal injury case result in, really, only one of three outcomes. The most common personal injury mediation outcomes are as follows:
- A settlement
- A partial settlement or partial impasse
- A global settlement
A global settlement would be one in which the parties agree on all issues in the case. In a personal injury case, there are two principal legal issues: responsibility for the accident, and appropriate compensation due to the personal injury. As Attorney Eric T. Kirk can explain, if the case is resolved globally, both parties will agree that the defendant caused the accident and is responsible for the consequences, and the parties also agree on the appropriate amount of compensation.
The “amount” is obviously the sticking point in most personal injury cases. In a case where the defense believes they have a strong defense as to liability, e.g., significant evidence of negligence on the part of the plaintiff, a global settlement is unlikely. If the real issue in the case is whether or not the defendant is responsible, sometimes in an appropriate circumstance, the insurance company might agree to the amount of a verdict in the event that an insurance company loses the liability issue at trial.
The latter scenario is an example of what I would call a partial settlement, which is the twin sister of partial impasse. If the parties agree to some, but not all of the issues, the case would proceed to trial on only those unresolved issues. If the parties cannot agree on who is responsible for the accident, or in a comparative negligence jurisdiction, the amount of fault attributable to each party, and cannot agree on liability, then the case would proceed to trial. If however, the parties agree to liability with the amount to be determined in a trial, or, agree to an amount, with liability to be determined in a trial. Either would be an example of partial settlement/partial impasse.
The final outcome is one in which the parties simply are not able to agree to any issue. In other words, in the typical scenario, the insurance company will not admit responsibility for the accident, and will not agree to discuss what appropriate compensation is. In some instances, I’ve seen insurance companies admit responsibility for the accident, but yet refused to offer any compensation whatsoever, or compensation at an amount that is ridiculously low. Where there is an impasse, the case proceeds to trial in whole, as if the mediation never occurred.