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April 5th, 2022
Mediation is a process wherein the parties to a lawsuit attempt to reach a resolution through negotiations with the help of a mediator. Nearly every case filed in West Virginia is required, by a court order, to attempt mediation at some stage of the lawsuit often times prior to the final pretrial conference. When the parties decide to mediate a case varies from case to case. Some cases can be mediated early on while others mediation is most beneficial shortly before the trial date and after the parties have engaged or completed depositions and other forms of written discovery.
The mediator is a third-party neutral, often an experienced lawyer who has undergone mediation training and certification, who will facilitate the discussions between the parties during the mediation. The mediators job is to bring about an agreed to resolution of the lawsuit. The mediator can be selected by the presiding judge but, most often, is agreed to by the attorneys for the parties. Both sides typically submit mediation statements to the mediator for their review prior to the start of mediation. These submissions often include an outline of the case, key facts, summaries of injuries and damages, theories of liability or defense, and critical documentation relevant to issues of the case. These submissions allow the mediator to prepare for the upcoming mediation. Mediation is a confidential process. Information divulged to the mediator, whether prior to the mediation or during the mediation itself, can only be disclosed to the other party if you or your attorney authorize the mediator to do so. Likewise, the information divulged during the mediation process remains confidential and cannot be used in the lawsuit in the event mediation is unsuccessful.
At the mediation, the parties, their attorneys, and the mediator will meet at a designated office location. Often, but not always, the named defendants do not participate in the mediation process. This typically happens when the defendants have insurance coverage for alleged wrongdoings. In those instances, a representative from the respective insurance carrier will attend the mediation either in person or by phone or video if agreed to by the parties. Some mediations begin with the parties gathering together and the mediator explaining the process and their role in the process. The parties are then separated into different conference rooms or offices and the negotiation process starts. The plaintiff will make an initial demand of the defendant if they have not done so previously. That demand will be relayed by the mediator to the defendant(s) and it will be upon them to decide if they want to accept the demand or make a counteroffer. These negotiations continue back and forth until the parties reach an agreed to resolution or settlement discussions stall or are ended.
Throughout the process, the mediator will relay the demands and offers but also present any information or arguments the parties authorize them to share with the opposing side. The mediator may also inquire with the parties and their counsel regarding questions and concerns pertaining to liability, defenses presented, injuries and damages claimed, and offer their own thoughts and opinions on the litigation. These candid discussions can be very beneficial to both the parties and their counsel as a mediator may present an alternative opinion, viewpoint, or concern that they may not have considered or downplayed the significance of.
Mediations can last a few minutes if the parties are dug into their respective positions and demands, or they could last several days depending on the circumstances and complexity of the lawsuit and the parties desire to continue with settlement discussions. Typically, for most personal injury cases, mediation usually lasts a few hours over one day so make certain to block off a significant portion of time. Your attorney will advise you as to what to expect and how long your mediation may last prior to the mediation occurring. If the parties reach and agreed to settlement at mediation, the mediator will advise the court of the resolution while the parties finalize the necessary documentation needed to complete the settlement. This usually takes a couple of weeks to complete. If the case does not resolve, the parties can continue with the litigation and move towards trial, or they may engage in continued settlement discussion among themselves or with the assistance of the mediator.
