Mediation is an alternative to having a judge or jury decide disputes. In some cases, personal injury clients may benefit from using a mediator instead of having a court trial. Generally, the mediation process is a friendlier, non-binding process. In this article, we’ll explain how mediation works and the benefits and risks of mediation.

How does the mediation process work in Tennessee?

A mediator is a person who has personal injury experience who tries to resolve your personal injury claim (car accidents, truck accidents, premises liability, and many other types of accident claims or negligence claims).

According to the Tennessee Courts, the mediator is impartial (doesn’t favor either side). The mediator works with the different parties to the lawsuit (such as an accident victim and a driver) and the lawyers for each party. The mediator does not make rulings about the admissibility of evidence. The mediator does not make a final decision. Mediators are certified by the State of Tennessee.

Generally, each party (and their lawyers) presents their summary of the facts (what happened). Our personal injury attorneys can explain what injuries you have due to the accident, the medical care you will need, the cost of your care, and how your injuries are affecting your personal life and your ability to work so that the mediator understands your side. The defendant(s) and their lawyers can explain why your damages claim should be reduced. Both sides can also explain how Tennessee law supports the claim of each party.

Mediators can listen to each side of the personal injury case either together (in the same room) or separately (in separate rooms). Usually, the mediator will go back and forth between different rooms, listening to the arguments and positions of each side until there is an agreement, or until it becomes clear that no agreement can be reached.

Mediators can also be used for many different types of legal disputes (such as family law, landlord and tenant disputes, and business disputes). The mediator should have knowledge and experience litigating and resolving disputes in the category of dispute involved. This means personal injury mediators should have experience in the courtroom, trying and settling negligence and personal injury cases.

The number of mediation sessions

Some mediations are resolved in one session. Some mediation conferences require multiple sessions.

Payment for the mediation sessions

Each side shares the cost of mediation, unless there is an agreement that one side will pay more than the other side. Each side should know before the mediation starts how much they owe the mediator and when they need to pay the mediator. The costs of mediation can also be factored into any settlement of your personal injury claim.

What are the advantages and disadvantages of personal injury mediation?

The benefits of mediation

Some of the many advantages of mediation in personal injury cases include the following:

• The dispute is private. Jury trials are generally open to the public. At a minimum, the jurors will learn of your accident, your injuries, and your pain and suffering. Mediation conferences are held in private. The mediator must keep the discussions confidential. If you cannot resolve your claim through mediation, neither the judge nor the jury will know of the settlement offers or discussions.
• A faster resolution. Generally, mediations can be scheduled as soon as both sides are ready. This time is usually after there has been discovery of the defendants and witnesses, and the scope and severity of your injuries are clear. Some mediations may take place before the discovery phase. You may have to wait months for the scheduling of a jury trial. Mediation can be scheduled within weeks. Unlike back-and-forth emails, letters, and phone calls with insurance companies and defense lawyers, the mediation usually determines in one session (or just a few sessions) whether there will be a settlement or not.
• The costs are lower. If you do present your case in court, there will be some court costs. In many personal injury cases, especially cases where the victims have permanent or catastrophic injuries, it is usually necessary for a physician to testify. We may need to call other experts, such as traffic reconstruction experts, product safety experts, building code officials, life care planners, financial experts, and other experts. Each expert charges for their time, which can be expensive. The mediation process normally does not involve any experts – just the parties and their lawyers.
• A better resolution. Mediation can help forge settlements, such as structured settlement agreements, to ensure a victim’s medical bills are paid.
• A friendlier process. Neither side will cross-examine the other side. A judge won’t continually rule on whether evidence is admissible. Neither side is trying to persuade a jury, which can be contentious. Depositions (formal question and answer sessions) may not be necessary. In short, mediations are often much less stressful than the litigation process.
• Less risk. With mediation, we work directly with the lawyers for the defendants and the mediators. That means we understand what’s being offered. You have the right to decide if you approve of any settlement offers. With a jury trial, you don’t know what the jury is going to decide.

One tactical advantage of mediation is that we get a better idea of the arguments the defense will assert if your case goes to trial.

Mediation is generally a voluntary process. Even if a judge orders that both sides participate in mediation, either side can terminate the mediation at any time. Your decision to accept any offers from the defendants is voluntary. There is no requirement that you accept any offers the other side offers. You always have the right to have a judge and/or jury decide your personal injury case.

At Banks & Jones, we can help you decide whether mediation is the right choice for you.

The risks of mediation

It’s best not to consider settling your case until we have all the information to determine the strength of the liability part of your case and how serious your injuries are. In some cases, we need to work with experts who can support your liability claim. We need to review with your doctors what complications may arise, whether you can return to work, and the quality of your life due to coping with your injuries. A fast mediation is often not to your advantage.

When juries decide in favor of personal injury victims, they may award more money than the victims would get through a settlement.

The lawyers at Banks and Jones are seasoned trial lawyers. We’ve been fighting for personal injury victims for over 30 years. We’re prepared to fight for all the compensation you deserve – whether a mediator hears your case or a jury decides your case. Call us now or fill out our contact form to schedule a free consultation. Banks and Jones is respected by former clients, insurance companies, and the legal community for our strong advocacy and record of success.