Personal injury lawsuits are one of the most common types of lawsuits in North Carolina. While the majority of these claims are car accident related, there are also trucking accidents, slip and falls, and medical malpractice personal injury claims. While personal injury cases can be taken to a trial, the vast majority of cases are cases that should be resolved between the parties without the necessity of a jury trial.
Every case filed in North Carolina Superior Court is sent to a mandatory mediation to see if the matter can be resolved without unnecessary expense. The Courts realized that these discussions can be very effective, and now the majority of personal injury claims resolve at mediation, rather than the eve of trial.
What is Mediation?
Mediation is a semi-formal settlement discussion held between the parties to a lawsuit. This discussion is facilitated by a neutral third-party, the mediator, who does not have a stake in the outcome of the mediation. The mediator’s job is to bring offers and demands between the plaintiff and defendant, and try to find a compromise position between the parties that everyone can live with.
Mediation is very different than arbitration or trial. There are no final decisions at mediation–just settlement discussions that are not binding on any of the parties involved. If the case does not settle, you are still able to continue on to arbitration or trial.
Arbitration and trial on the other hand result in a finding of liability or no liability, and an “award” of damages for the injured party. These rewards are usually final, and once the matter is submitted to the arbitrators or jury, it is out of the hands of the parties to come to a compromise.
During mediation, the mediator will carry messages between the respective parties, and try to provide useful feedback to the lawyers and the parties, in an attempt to see if a compromise can be found. Sometimes one party is being more stubborn than the other, and a good mediator will help steer the litigants in a productive direction.
How does the Mediation Process work in a Personal Injury Lawsuit?
The North Carolina personal injury mediation process will involve pre-mediation preparation, a “joint session” at the start of mediation, and, if the mediation is successful, a post-mediation resolution process.
Pre-Mediation Preparation
Joint Session
Separate Rooms at Mediation
Then, the insurance defense adjuster will offer a settlement number much lower than they believe will be adequate to resolve the case, and the mediator will bring that number back to the injured person’s room.
This process then continues until either a settlement is reached, or the mediator declares an “impasse,” meaning the parties were unable to come to an agreement.
While in either one of these rooms, the mediator may ask questions or provide feedback about how he sees this process progressing. Sometimes a mediator will get a sense from one or both rooms where the respective parties believe a fair number resides, and will subtly hint to the other room where the negotiations will need to progress to make any process.
The goal is to not waste time, while still allowing everyone involved confidence that the process was taken seriously.
Advantages of Settlement at Mediation
There are many advantages of settling a case at mediation. The mediator will most likely explain these advantages to you during the joint session, and your attorney should also be able to explain to you why a (fair) settlement is in your best interest.
First, it eliminates the uncertainty of a jury trial. If an attorney says they can predict what a jury will do with your case, they are lying. Juries can often get fixated on facts that neither lawyer thought were important. Also, there is no mathematical formula to decide personal injury damages. The jury is just told to pick a “fair” number for pain and suffering, mental anguish, and permanent disabilities. The facts just go into the black box of the jury room, and even experienced lawyers are routinely surprised by jury verdicts in what appeared to be a routine personal injury lawsuit.
Settling a case at mediation is the only time you have complete control over how much money you will receive as a settlement for your injuries. Your lawyer should be able to estimate how much money will end up in your pocket after their fees, costs, and medical bills are paid. Getting a specific number can be much less stressful than just hoping a jury gets it right.
Next, trials and arbitrations can be very expensive. Most personal injury lawyers in North Carolina will wait until after mediation to start taking expensive medical depositions. We have to ask your doctors questions about whether your injuries are related to the defendant’s actions, no matter how obvious it may actually be. A judge will not allow a jury to award damages for medical bills and permeant injuries without doctor testimony. These doctors can charge upwards of $1,000 an hour for the privilege of asking them these questions.
This money comes out of the client’s share of the recovery. So if we have to ask 2 hours of questions, you’ve now lost $2,000 of your share of the recovery. A \$50,000 mediation settlement would then be the same as a \$52,000 jury verdict. Avoiding these costs can put more money in your pocket at the end of the day, which is the ultimate goal.
Frequently Asked Questions
Is Mediation Mandatory or can Parties Opt Out?
Mediation is mandatory in North Carolina Superior Court cases, which is any case where the value of the claim exceeds $25,000. While some cases resolve before mediation, if the case does not resolve early and is headed towards trial, you will be required to attend a mediation.
Who Pays for the Mediator’s Fees
The parties that attend the mediation equally split the mediator’s fees, unless the parties agree to something else either ahead of time or after the fact. Sometimes, the insurance company will agree to pay for the mediation in an effort to more quickly resolve the controversy.
What Happens if the Parties can’t reach a Resolution during the Mediation?
If the parties are unable to resolve the case at mediation, it will be put on the court’s trial calendar, and the case will go to trial. The parties can still attempt to settle the case after mediation, and often times will resolve the case right before trial.
Can a mediator make a binding decision?
No, the mediator does not make any binding decisions. They are there to facilitate settlement negotiations, but they are not a judge, and nothing they say or think will preclude any claims or defenses at trial.
Is there a difference in the process when the Mediation is done virtually?
Many mediations in North Carolina are now done remotely. The process is still almost entirely the same. The joint session still has everyone in the same “virtual room,” and then the mediator can sort each lawyer and their client into their own separate virtual rooms after the joint session. The mediator then moves themself back and forth between the virtual rooms.
This has been a positive development for many clients, as it cuts down on travel time and expense.
Can the parties prepare or submit documents ahead of time for the mediator to review?
Yes, it is very common practice for the attorneys to send the initial Complaint and Answer to the mediator before mediation to make the mediator aware of the basic nature of the lawsuit. This leads to a more focused joint session, and speeds up the overall process.
Are there any specific qualifications or certifications for a mediator to handle a personal injury mediation?
Yes, every mediator in North Carolina must take a mediator certification class, which includes learning all the rules of mediation, and observing a number of mediations. Our firm also tends to select mediators that have significant experience both defending and prosecuting personal injury matters as attorneys, as we find that the insurance adjusters will listen to experienced mediators, resulting in better outcomes for our clients.
Are there any laws or regulations that govern mediation in personal injury cases?
Yes, the North Carolina courts have created the Rules of Mediated Settlement Conferences, which I have linked here for your convenience.
Conclusion
I hope this overview of the North Carolina mediation process in personal injury claims was helpful. When handled correctly, mediation can reduce the amount of stress and uncertainty that you’re facing as a result of yours or your loved one’s injuries, and close the door on this painful chapter you’ve had to experience. A successful mediation will allow you to continue to recover from your injuries or loss with the certainty of a result.
