Our clients’ only legal means to compel compensation from an automobile insurance company for their personal injury claim is by trial where a judge or jury determines the amount of their award. Securing a judgment at trial against a driver determined to be at fault for the collision triggers the obligation for an insurance company to pay the amount of the award.
While a trial by jury is our clients’ only legal right to achieve a recovery, many cases are resolved through voluntary negotiations between the opposing parties which lead to a settlement agreement without a trial. Typically, these negotiations happen directly between the representatives of the parties. For example, I generally negotiate on my client’s behalf with either the insurance company adjuster or, in the event a lawsuit has been filed, with the lawyer hired by that insurance company to represent the defendant whom I have sued for my client.
However, occasionally settlements are negotiated with the assistance of an impartial person who otherwise has no interest or involvement in the case. This person is called a “mediator.” The mediator must be agreed upon by all parties to the negotiations. That person’s role is to be the “messenger,” communicating between the parties their respective offers and demands. While the mediator does not have authority to force a settlement agreement, typically that individual is an experienced trial lawyer or judge who brings to bear his or her experience to enable both sides to find common ground and thus agree upon a settlement amount.
Most mediations that are successful take an entire day. They begin with all of the parties together in the same room with the mediator. Each opposing side presents a summary of their view of the case, and thereafter moves into separate rooms. The mediator then carries the offers and demands back and forth until either a settlement agreement is reached or the participants decide that the mediation has failed and the case must be resolved by trial.
Two factors generally contribute to the success of a mediation which are not present during traditional negotiations directly between the parties. First, the decision makers for the parties are all together at the mediation. Secondly, an experienced mediator can identify the strengths and weaknesses in both sides of the case and facilitate finding common ground among the parties, thus making a settlement possible.
About the Author: Charles Allen is a Richmond car accident lawyer with the Richmond personal injury law firm of Allen, Allen, Allen & Allen. He has handled injury cases for Virginians for more than 25 years. Mr. Allen works on cases primarily from the Richmond, Mechanicsville and Short Pump offices.