At a mediation, the parties and the attorneys are present. The defendant is often there, but that is not required. A representative from the insurance company is required. A mediator, a neutral person that both sides have agreed upon, runs the meeting but does not have decision power.
The mediator gives guidelines and states that everything that is said here is confidential (the Las Vegas rule - what happens here, stays here). We state the facts, typically with medical records, x-rays and photographs. If you have videos that show your life before and after the event, they are crucial in this presentation. We want to show that the events affected a living breathing human being, not just the information in the cold clinical records.
The defense lawyers then give their version and explain why they disagree. This can be hard to hear, but it is important. It gives you an idea of what a jury will hear if we cannot settle.
We then go into different rooms. We start the negotiation by telling the mediator a dollar amount. The mediator then goes back and forth between the parties giving numbers and messages. Sometimes when we make progress but cannot quite settle at the official mediation, we settle the matter in the next few weeks by telephone.
If we can agree, then we write everything up. You sign a release giving up all future claims regarding this matter. Most releases state that you cannot discuss this with other people and that the defendants are not agreeing that there was any negligence.
A check should come to us in a month or two. As you can see from the procedures of the trial and post trial, there is real value to settling at mediation to avoid the costs, uncertainties, and time of the trial and post trial procedures.
Once everyone has come to an agreement regarding an amount for settling the case, the money gets deposited in a trust account.
You get a closing statement which shows the total amount of the settlement, attorney fees, the costs, an estimate of the amounts that the lien holders are to get, and your share.
The lien holders are insurance companies and health-care providers that paid for medical care you had to have due to the negligence. Medicare and Medicaid can take a very long time to determine the total amount of the lien. You get the rest of your share once the lien amounts have been determined.
The information you obtain here is not legal advice. Consult an attorney (preferably TiMedLaw!) regarding your own situation.
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