Can I Settle My Personal Injury Case Later if Mediation Fails?
In a civil litigation lawsuit, as opposed to criminal, when a plaintiff brings a claim for personal injuries or the wrongful death of a loved one, the court is going to issue — one of the questions a client will ask is what is going to happen when and where’s it’s going to potentially settle or not settle, and “Do we get a trial?” The court’s going to issue what’s called a scheduling order and every single court issue’s a scheduling order. It’s going to set the period of time when discovery has to take place. Discovery is when we force the other side to give information that’s theoretically helpful to pursuing the plaintiff’s claim, our client’s claim. The other side’s going to ask discovery from us, which theoretically may entitle them to try to argue that well, maybe they weren’t at fault after all. Both shots get an equal chance at that.
One of the other things the judge is going to do is he’s going to set up a time where all the depositions have to take place. Another thing the judge’s scheduling order is going to do is he’s going to say by a certain period of time the parties must mediate. What is a mediation? It’s not in front of a judge. It may be in front of a retired judge not hearing the case, but it will be in front of someone who is a third party who can oversee. It’s very informal. Everything said at a mediation is confidential and private. Nothing said as a mediation can be repeated back at a trial, and the reason for that, it’s intended that each side put their cards on the table. The plaintiff will theoretically say why there’s liability and what the damages are and what that amount of money should be in just that compensation for a client. That’s what our firm does routinely. The defendant will say, well, here’s certain facts why there’s no liability. Here’s certain facts why she or he ought to be able to go back to work, and maybe the damages aren’t quite what the plaintiff are making them out to be. That happens in every single mediation. First of all, a mediation shouldn’t be intimidating for a client at all because the only people talking are the attorneys. I’ve sat next to clients. They see what I have to say on their behalf and I tell them all the time, whatever the other side says don’t react to it, whatever they say
Now, one of two things can happen at a mediation: the case settles or the impasse is declared, impasse meaning there was no agreement to resolve the case. Can the case settle a week later? Yes. Can the case settle walking up the courthouse steps six months later? Yes, and that’s a decision for the clients to make with the advice of the law firm. Will a case perhaps not settle. It impasse the mediation and it might go to trial, it does go to trial. That’s a decision for the client to make. That’ll be in their prerogative, if you will, based upon the advice of our firm.