Litigation is a confusing process. A standard case involves several phases and can seemingly stop and start as parties argue about what seems like minor issues. It can confuse clients and outside observers more when a case enters alternative dispute resolution – extending an already long and challenging process. However, clients may be equally surprised to learn most cases never reach a trial, and alternative dispute resolution, such as mediation, can be a key component of their case and may even benefit them.
Does Personal Injury Litigation Always End in a Trial?
While high-stakes courtroom dramas make for good television, the reality is that the vast majority of personal injury cases settle before they reach a jury. A good lawyer will tell you what cases are best reserved for a courtroom – for example, if they involve a particularly extreme act by a defendant, solid evidence, or a compelling plaintiff. In these scenarios, it is crucial to have an experienced legal team with trial experience to maximize your compensation. However, in many cases, it may make sense to seek resolution through alternative dispute resolution, such as personal injury mediation. This process offers confidentiality and practicality for all parties involved and can be a viable path forward.
Additionally, Virginia has a strict contributory negligence law that favors insurance companies. Knowing this, they may give low compensatory offers, initially betting that the law will favor them if they go to trial. They may seek alternative dispute formats such as mediation to avoid the high costs of going to trial. Some counsel may encourage you to leap at any offer, but an experienced law firm can guide you through these tactics and give you clear advice about your best path forward and maximize your financial recovery.
What is the Landscape of Personal Injury Mediation in Virginia?
State Law: Virginia has no compulsory mediation requirement that many other states do. This means personal injury mediation is not required, and a judge cannot force two parties to mediate their claims. However, they can refer the parties to an informational mediation session during which the parties can begin exploring the mediation process. Depending on the case posture, they may choose to address their claims through this matter. An experienced law firm can help decide if a case may be particularly well suited for a jury trial or whether testing the mediation process is the right course.
Federal Law: Due to limited federal judicial resources, federal judges strongly prefer resolving disputes through methods other than going to court, such as judicial dispute resolution. In both the Eastern and Western District Courts of Virginia, there are no strict requirements, but parties should anticipate being encouraged to use alternative dispute resolution. In the Western District, mediation is specifically emphasized as the preferred method. Parties in the Western District can ask for alternative dispute resolution through a formal request (motion), or the court may suggest mediation on its own. This means that in federal court, resolving personal injury cases can involve both personal injury litigation and personal injury mediation, and parties should be prepared for this possibility in their case.
What can I expect from Mediation?
The procedures can vary in courts, but standard practice is for the plaintiff and defendant to submit a list of candidates or ask the court to appoint a mediator. Mediators are often retired judges, though others can serve in that role. In federal courts, magistrate judges often serve as mediators or neutrals.
The mediation process is confidential and involves the plaintiff, defendant, their respective counsel, and the mediator convening to discuss the case’s merits. Typically, the process starts as a group exercise, with each party making statements and proposing their general case outline. The mediator will often ask clarifying questions and then meet with each party separately to give them an outside perspective of their case and to inform them of their strengths and weaknesses.
In the best cases, when the group reconvenes after their separate counsel, mediators can help the parties come to a mutually agreeable solution and avoid the time and expense of lengthly litigation. Even if the parties still do not agree on a settlement, they may better understand how personal injury litigation would result if it went to trial.
In some cases, mediation is the best path forward and can help resolve a case on the best possible terms. The best choice is to find a law firm equally skilled in settling cases outside of the courtroom and winning trail cases. An attorney who can seamlessly move between the two styles will be able to achieve the best results possible for you.
Are you or a loved one dealing with a personal injury? Contact Huffman & Huffman today for a free case evaluation. Our attorney team will provide you with advice and guidance throughout your personal injury claim, so that you can make the best decision when faced with settling your case through mediation or in a courtroom.
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