In a mediation, also known as a settlement conference, the person that assists the parties in reaching a settlement is called the mediator. Unlike an arbitration, where an arbitrator decides the case following the presentation by both parties, a mediator has no authority or power to resolve the case. In a mediation, only the parties have the authority or the ability to settle the case and the case settles only if both sides reach an agreement.
Before mediation begins, each party submits a memorandum outlining their positions so the mediator has a thorough understanding of the case. Mediations usually take place at the office of a mediator where only the parties attend with their respective lawyers. Each party is placed in a different room with only their counsel present. Separating the parties helps create a less-stressful and non-confrontational environment. It is important to note that everything discussed at the mediation is confidential and cannot be used later against either party at trial should their case not settle. This confidentiality enables the parties to freely discuss their case without the fear that what they say can be used against them later.
First, the mediator usually discusses the case with the plaintiff and attempts to learn the plaintiff’s positions. The plaintiff’s attorney will usually speak on behalf of the client, though the mediator may ask some questions or want to hear directly from the plaintiff. The mediator will usually present the plaintiff with the mediator’s perspective of the case and will often point out any possible issues the plaintiff may have at a trial should the plaintiff not settle. Next, the mediator will meet with the defendant(s) to share the information received from the plaintiff. The mediator will usually point out the problems with the defendant’s case and provide the defendant with the risks they may face at trial should the matter not settle.
If the parties are able to settle on an amount they both agree upon, the mediator will usually create a settlement agreement for the parties and their counsel to review before signing. If they do so, they will have settled their case and the settlement check must be tendered to the plaintiff’s counsel within 30 days. If they do not reach an agreement, they will proceed with the case through the court system. The parties can still attempt to settle their case as they move forward in litigation.
The experienced attorneys at Darryl Breaux & Associates are available 24 hours a day and 7 days a week to answer any questions you may have about mediation for a personal injury accident in New Orleans or elsewhere in Louisiana. Call us now for a free consultation at (504) 914-7779.