Posted on Saturday, October 15th, 2022 at 6:55 pm
In Oklahoma, mediation is an option when personal injury negotiations are unsuccessful. Since it is a form of “alternative dispute resolution,” your case will not go to trial if both sides can arrive at a settlement agreement.
However, mediation does not result in a legally binding outcome.
How Does Mediation Work?
Mediation follows a more formal structure than simple negotiations. Both sides will work together to choose a court-certified “mediator” who will guide the meetings and enforce procedural rules. Your lawyer will brief you on what to expect and work with you to determine an acceptable minimum settlement offer.
On the day of mediation, you, your lawyer, and an attorney from the defendant’s insurance company will attend. There may be a “joint session” where the attorneys present their evidence, ask questions of each other, and make their initial settlement offers. Then, each side will go to separate rooms, with the mediator circulating between them to ask questions and relay new offers. If both sides agree to a settlement, the mediator will help you resolve the case.
Anything you say during mediation is strictly confidential. If your case ultimately goes to trial, the defense cannot use statements made in mediation against you. However, to protect your rights, you should still follow your lawyer’s advice on what not to say.
What Sets Mediation Apart from a Trial?
In a trial, there are winners and losers. Your lawyer will present evidence that supports a favorable verdict and refute the defense’s arguments. Whatever the judge or jury decides is legally binding, so if you win, the liable party must compensate you for awarded damages.
In mediation, however, no one “wins” or “loses.” You and the defendant’s insurance company will together determine the outcome, and you each will have to make some compromises to reach a successful resolution. While the mediator will attempt to guide both sides toward a solution, they are not a judge or jury and will not issue legally binding orders.
What Sets Mediation Apart from Arbitration?
In a mediation, neither you nor the defense is forced to enter a settlement agreement. Arbitration, on the other hand, resembles a “trial by judge” and will result in a binding outcome.
In arbitration proceedings, both sides will present their evidence under oath to a neutral third party, often from the non-profit American Arbitration Association. The arbitrator will ask clarifying questions and maintain decorum. Once they decide how best to resolve the case, they will prepare the appropriate court paperwork and bind all parties to follow the resolution steps.
What Happens When Mediation Is Unsuccessful?
Since you and the defense attorney in mediation have equal control to resolve the case, the process does not always result in an agreement. For example, an aggressive insurance adjuster may decline to consider an offer at your minimum threshold. These situations are called “impasses,” and they could result in any of the following scenarios:
- Mediation continues – Mediation can proceed for as long as the parties desire, even under a different mediator if both sides agree.
- Independent negotiations resume – If the parties reach an impasse, they may restart negotiations without a mediator. The parties may still consider the mediator’s previous suggestions.
- Proceed with arbitration – Some defendants, particularly businesses, may decide to resolve the case quickly through binding arbitration.
- Proceed with a trial – If none of the above options are ideal, the parties may let the case proceed to trial.
Is Mediation Right for Me?
Some ways that mediation could benefit you in a personal injury case include:
- Confidentiality – By pursuing mediation, you will be better positioned to keep sensitive information private. Trials can open this information to public scrutiny.
- Cost savings – Mediation is much less expensive than a trial for both parties.
- Time savings – A trial could take months to years to conclude. If you can agree to a settlement in mediation, you will be able to obtain the compensation you need sooner.
- More time to file – You are time-limited to file a personal injury lawsuit in Oklahoma. If you enter mediation, the court may toll (pause) the statute of limitations for the length of the process.
Despite the value of mediation, it is not suitable for everyone. For example, if the difference between your minimum acceptable settlement and the insurance company’s offer is too significant or if the defense does not behave constructively or cooperatively in negotiations, your lawyer may recommend an alternative option.
Contact an Oklahoma City Personal Injury Mediation Lawyer
If you were injured in an accident that wasn’t your fault, let the Oklahoma City personal injury attorneys of Abel Law Firm represent you in mediation. Contact our office today at (405) 239-7046 for a no-cost, no-obligation case review.