Mediation: What You Need To Know

By Wesley J. Farrell, Esq.

What is Mediation?

Mediation is a process where the parties involved in a dispute sit down with a neutral third person (the mediator) who is trained to help people come to a mutually satisfactory solution of their conflict. Until a dispute becomes an actual lawsuit, mediation is entirely voluntary; it only happens if both sides request it, and a settlement of the dispute through mediation is reached only if both sides agree to it.

If your case is sent to mediation, then your attorney and the insurance defense attorney will try to agree on who to use as the mediator. Once that’s done, they will schedule a date for the mediation. Oftentimes mediation is the first opportunity where the parties can meaningfully sit down and discuss the merits of case in an attempt to reach a settlement through negotiation. While mediation is often productive, mediation can fail if the parties are not properly prepared of what to expect.

Who is Present at Mediation?

Those present at the mediation are typically the Plaintiff, the Plaintiff’s attorney, the insurance company’s attorney. The final person who attends the mediation is the mediator. The mediator must be certified and is usually a retired attorney or retired judge. It is best to find a mediator who has practiced in the area of property insurance so that he/she has a better understanding of the area of law.

How Does Mediation Work?

Upon arrival, the mediator introduces themselves to all of the parties. They also ensure everyone knows each other and their roles in the case. After introductions, the parties and their lawyers will gather in conference room together for opening statements. Your attorney will present your side of the case. The insurance company’s attorney will then make statements that will challenge your view of the facts and the value of your case.

It is important to remember that mediation is non-binding. If you think the insurance company is not offering enough during mediation, you are not obligated to accept the offer. The better you prepare for mediation, the better your chances are of settling. Be prepared to walk away. Many cases settle days or weeks after a mediation. Mediators use a variety of techniques to bring parties together on a settlement amount. A common technique is for the mediator to start by having everyone in the same room, then isolate each side in a different room and go back and forth to minimize confrontations and maximize constructive dialogue.

How Long Does a Mediation Take?

A successful mediation can take anywhere from a few hours or a full day. In our experience, the average mediation time is between 4-6 hours. The process takes time because the mediator will be meeting privately with the parties in separate rooms in order to gather information about the case. The mediator will deliver offers and demands back and forth between all interested parties.

Are Mediation Negotiations Confidential?

Yes. After everyone has been introduced, the mediator passes around a document everyone signs agreeing to keep negotiations at the mediation confidential. This means that each party can agree or admit things they otherwise wouldn’t at a trial.For instance, the defense may say they are not contesting fault at mediation (which means admitting full liability for mediation only) but could fight fault at trial. Or, the defense may offer a settlement figure. If the case doesn’t settle, neither side can tell a judge or jury about one side’s willingness to settle.

Who pays the mediator’s fee?

Look at your policy. There may be a payment provision covering claim adjustment expenses that you can use to get your insurer to pay for mediation fees. Generally, the options available are as follows: (1) Fee can be split equally between you and the insurer; (2) Insurer pays the fee; (3) Insurer advances the fee and you agree to reimburse them for your half out of a settlement.

What Happens After Mediation?

If you resolve the case at mediation, you draft a settlement and sign it the same day. The agreement is enforceable. There’s paperwork to do to close out the case. You may need to type the agreement up officially for the court to sign it an enter it into the court record.However, when you reach an agreement at mediation, you can breathe a sigh of relief and look forward to collecting your judgment. If you don’t reach an agreement at mediation, the case stays on track for trial.

If your insurance company offers a settlement that is not acceptable and negotiations have stalled, mediation may be an option to consider. An experienced and trusted property insurance attorney can advise you of all your options and rights as a policyholder. Hiring a homeowner’s insurance lawyer that knows property insurance lawyer in your state can make a big difference in the success of your claim. The insurance company has a team of lawyers working for it to make sure they don’t pay you. You should have a team of lawyers working for you too! FPJL will aggressively represent you to ensure you get the money you are owed without any further delay by the insurance company. Our team of attorneys have decades of experience providing affordable representation to Individual and Corporate policy holders facing a wide range of denied, delayed or underpaid insurance claim issues.

Contact our law firm today at (305) 300-3000 for a free consultation!