Under the Louisiana Mediation Act, civil lawsuits are encouraged to be settled using the mediation process. One type of civil lawsuit that is often resolved through mediation is a personal injury case. The mediation process is geared towards the parties resolving their issues without appearing in court. Thus, in general, resolution through mediation is much faster, easier, and economical than litigating a lawsuit in court.
What is Mediation?
The American Bar Association defines mediation as “a private process where a neutral third person helps the parties discuss and try to resolve a dispute.”
In this process, a mediator, the independent 3rd party assisting the parties to a lawsuit, helps narrow the issues in a case to determine what points the parties are really in disagreement about. This process heavily involves negotiation and communication to work on a single goal for both parties to reach a comfortable settlement.
Who Acts as a Mediator?
As noted above, the mediator is an independent 3rd party individual that acts as an intermediary for both parties. Although a mediator is neutral, it does not mean that they are unknown to the parties to the lawsuit. The parties must agree on the mediator to use for their case.
Generally, retired judges or private attorneys who specifically practice mediation law serve as mediators in lawsuits. In Louisiana, the qualifications of a civil mediator are stated in La. R.S. 9:4106, which includes that:
- A person must have completed a minimum of forty classroom hours of training in a mediator course approved by the MCLE Committee or the ADR Section, and must be licensed to practice law in any state for not less than five years; or
- A person, if not licensed to practice law, must have completed a minimum of forty classroom hours of training in a mediator course approved by the MCLE Committee or the ADR Section, and must have mediated more than twenty-five disputes or must have engaged in more than five hundred hours of dispute resolutions;
If a person served as a Louisiana district, appellate, or supreme court judge for at least ten years, they do not have to meet the previous conditions but must no longer be serving as a judge to qualify as a mediator.
Who Pays for the Mediation?
The cost of mediation, which generally includes the salary of the mediator, rental of the space used during mediation, or any other expenses related to the mediation process, is typically equally divided between the parties. However, it is not uncommon for payment of the mediator’s fee to be one of the last items negotiated during a mediation.
What is the Mediation Process in a Personal Injury Case?
Unlike a court trial, mediation is not about convincing a jury, judge, or a mediator to rule in your favor. Instead, the goal of the mediation process is for both parties to reach a comfortable settlement through the help of a mediator.
Generally, the mediator will place each party in a separate room. During the process, the mediator spends time with each party to discuss the case. The mediator will then have to move back and forth between the rooms to address any developments or propose a resolution based on their assessment of where the parties are at with their position in the case.
However, there are also situations where a mediator might feel that they need to get all the parties together in one room for a joint session. During this event, the mediator will address each party and engage them in a productive discussion to reach a resolution.
Does Mediation Replace a Court Trial?
The short answer is it can..
Mediation is meant to resolve issues, which in a personal injury case means a settlement is reached that is agreeable to both parties. This means that if a lawsuit is resolved through mediation, the case would be considered settled and the agreement’s terms reached through mediation are honored. No trial would be necessary.
Can a Party Still Pursue a Court Action If Mediation Was Not Successful?
Yes, you may still pursue court action if mediation is unsuccessful.
The ultimate goal of the mediation is to settle the lawsuit. However, there are situations when mediation cannot resolve the issues in a case, and the parties cannot settle. In these situations, the parties to the lawsuit can pursue litigation in court to resolve the issues in their case.
Generally, the parties to a lawsuit do not forfeit their rights to bring their lawsuit to court if they elect to pursue mediation. So, a court action is still available to the parties if the mediation process did not work in their case.
However, if the mediation is successful and both parties to the lawsuit are able to reach a settlement, the court will deem the case resolved and will not rule on any issue pertaining to the legal action.
Can Matters Discussed During Mediation Be Used in Litigation?
Generally, no. Mediations are private and confidential.
Unless the matters discussed during the mediation proceeding fall under the statutory exceptions, the information provided during the process cannot be used in subsequent litigation.
Some of the statutory exceptions include:
- When disclosure is necessary for criminal prosecution;
- When essential to prove coercion or fraud that led to the lawsuit;
- To establish the existence or terms of the settlement; and
- When necessary to impose sanction or discipline counsel in connection to the mediation process.
If you or your loved one is a party to a personal injury case, you need reliable legal representation to advocate for your interests. Our highly experienced personal injury lawyers are prepared to guide and help you in your case. Please call us at (225) 963-9638, or you can click here to contact us about a free consultation. Our dependable personal injury lawyers can help you assess your case, represent your interests, and answer any concerns you may have regarding your rights in your accident claim. We can also represent you on your behalf on any mediation to resolve your personal injury case.