The traffic jam in civil courts caused by the COVID-19 crisis means that many people have begun looking for other ways to resolve their personal injury cases. One way is through mediation. Mediation is a method for resolving issues between parties without the time and expense of court. It can be effective for cases where the parties want to resolve minor disputes.
Mediation in Louisiana is codified under Louisiana Code Title XIX, Ch. 1, the Louisiana Mediation Act (LMA). This code section defines mediation, sets the requirements for certified mediators, and how courts shall refer cases to mediation.
What Is Mediation?
Mediation is a process in which the parties in a dispute agree to meet with a neutral third party (the mediator) and attempt to discuss the differences in their case. The goal is to reach a resolution without involving the courts or having a judge hand down a ruling favoring one side or the other.
During mediation, the parties and their attorneys often meet face to face, and the mediator will encourage them to discuss their differences openly and make their own suggestions as to how these differences could be solved. In other cases, the mediator meets separately with the parties, and then makes recommendations to both sides individually about how they might come to a solution.
The goal of mediation is to have all parties contribute to the resolution of the case, rather than have a judge decide who was right or wrong. The mediator is not there to decide the legalities of the case but to facilitate dialogue between the parties. Mediation is not legally binding on the parties, although any agreement can be presented to a court if the parties wish.
Mediation is different in this respect from arbitration. Arbitration is an actual legal process, although less formal than a court proceeding. In arbitration, an administrative law judge (ALJ) will hear the case informally and then make a binding ruling about the matter. Although the rules about the presentation of evidence are different, arbitration is similar to a court trial.
Benefits of Mediation in Personal Injury Cases
When bringing mediation to personal injury cases, it is important to remember that this is not a court of law. No ruling about fault or liability is going to be made here. This can make mediation an ideal alternative in cases where fault is unclear, or the parties do not wish fault to be placed entirely on one party or the other.
For instance, suppose your neighbor rear-ended you at the corner of your block. You think your neighbor should have to pay for the damage. Your neighbor agrees but you can’t agree on how much is fair. Taking your neighbor to court would make everyone angry, but not having your car fixed is making you angry. Mediation would let you and your neighbor sit down with someone uninvolved with the case to talk about what is the best way to proceed without making it worse by going to court.
Mediation also puts everyone on the same footing. Because the goal is simply to facilitate negotiation and not argue over who is right and who is wrong, the side with the best lawyer doesn’t automatically win.
Suppose, in the neighbor case, your angry neighbor has hired a big-name attorney for some reason, who has whipped up a big case about how the sign was obscured, your brake lights were out, and the sun got in his eyes because it was late afternoon. None of that matters in mediation because all you want is your bumper fixed. Whether or not you have an attorney by your side will not matter.
Mediation can resolve personal injury cases in less time, for less money, when both parties are willing to work with one another and the mediator, and when they agree to abide by the informal agreement that both of them have worked to create.
Disadvantages to Mediation
Because it is an informal, mutual agreement that both sides must agree to in good faith, mediation cannot work when one party is not negotiating in good faith. Mediation is also not advised when there are genuine issues of fact to be decided by a judge, or in situations where a legally binding judgment must be handed down.
For instance, suppose in the neighbor case, your neighbor rear-ended you hard enough that your car went forward into the intersection, and you were also t-boned by a commercial van. Your injuries were serious enough that you will now need several years of physical therapy. And on top of that, you agree with your neighbor that the sign might have been obscured by a tree at the time.
In a case like this, mediation is not advised, since the issues are too complex.
If you have a case you think might benefit from mediation, consult your attorney. At Veron Bice, LLC, we utilize mediation to great advantage for our clients. Contact us today at 337-310-1600 to let us review your case and see if mediation would help you reach your goals.