Under Wisconsin law, a judge may order mediation to help the parties in a personal injury lawsuit try to reach a settlement. Depending on the county you are in and the judge assigned to your case, you may be required to participate in mediation before a trial date is scheduled. Alternatively, in cases where mediation is not court-ordered, you can propose voluntary mediation to the adverse party as a cost- and time-efficient negotiation and settlement tool.
Is Mediation a Good Thing?
The short answer is yes. Mediation can help keep litigation costs down by bringing the parties to the negotiating table before they incur the high costs associated with trial. Mediation also gives the parties an opportunity to resolve a dispute with certainty rather than face the uncertainty of a jury trial. In a fruitful mediation, you will have the chance to weigh the last settlement offer/demand (a certain outcome) against the range of possible jury verdicts (an uncertain outcome) and decide whether to accept a compromise or proceed to trial. Because mediation is rooted in contract and agreement, you retain a measure of agency that is absent in other aspects of litigation – you decide your own risk tolerance as you weigh the security of a certain compromise against the risk/reward of a jury awarding you less/more at trial.
How Does Mediation Work?
Mediators are often attorneys or retired judges who are trained to resolve conflicts. In Wisconsin personal injury litigation cases, mediation typically involves all parties sending the mediator confidential written submissions summarizing the case and highlighting areas of dispute or agreement. Then the mediator will alternate meeting with the parties – separately and privately – to work towards a compromise. The mediator does not make any decisions or rulings and, indeed, is trained not to give an opinion on the merits of the case. Their role is simply to facilitate negotiations. However, the mediator may offer their opinion on important elements related to your lawsuit like case valuation, jury trends, or the presiding judge. This type of feedback from a neutral party can be invaluable in identifying the strengths/weaknesses of your lawsuit and reigning in unrealistic expectations.
In other types of litigation or conflict resolution, mediation may be conducted through a mix of group and private sessions. In this type of mediation, the group sessions encourage the parties to speak to each other in the mediator’s presence, and the private sessions allow the parties to discuss sensitive and confidential matters with the mediator privately.
If the parties are unable to reach an agreement, the case will proceed to the next stage of litigation – typically preparation for a jury trial.
How Can I Increase The Chances of a Successful Mediation?
As a client/party in the lawsuit, its important to know what to expect and approach mediation with the right mindset. This is not your chance to “win” your case, but rather an opportunity for guided negotiation towards a compromise. Listen to the mediator if they offer any opinions on the strengths and weaknesses of your case and try to incorporate that feedback into your expectations. If an offer is made, be sure to account for any obligations you may have to reimburse subrogated parties and your attorneys when calculating what your net recovery would be. Weigh any offers against the range of “good” and “bad” trial outcomes that are possible given the facts of your specific case – some cases may have a narrow range of expected outcomes which are all positive, while other cases may have a broad range of possible outcomes on both sides of the ledger. Remember to consider the additional time and expenses that come with trial when weighing your decisions. With all this in mind, it’s important that you come to mediation prepared to think about case valuation, the time-value of money, and your personal risk tolerances.
Although mediation is a good tool for resolving contested disputes, it is not a panacea. If mediation is unsuccessful, there will likely be additional opportunities for the parties to engage in informal settlement discussions before trial – especially if the parties were close to reaching an agreement. Your case expectations should remain flexible enough to shift with new information and feedback from the mediator yet firm enough to withstand the pressure to accept an unsatisfactory settlement offer simply to conclude the litigation. Finally, be prepared to walk away if the other side is not engaging in mediation in good faith – there is typically no requirement that you stay in mediation for hours (and incur additional costs for the mediator’s time) if the other side refuses to advance negotiations.
Contact Us For All Your Mediation Needs
If you have a personal injury case, you should expect mediation to be raised at some point, whether court-ordered or by voluntary suggestion. Your lawyer might even advise you to attempt mediation before filing a lawsuit in certain circumstances. However you get there, mediation can be an excellent tool for resolving disputes if you understand the process and approach it with the right frame of mind. To find out more about mediation in personal injury cases and get the legal help you need, contact Walden, Neitzke & Kuhary, S.C. today. Our personal injury attorneys (and trained mediators) put the interests of our clients first. We will not make a move unless we are sure it will aid in recovering the compensation our clients deserve.