Mediation of Personal Injury Cases
Attorney Brett Oppenheimer explains what mediation is and how it can benefit people who would like to try and resolve their case without going to trial. To learn more about the process of mediation, please view this short overview by Mr. Oppenheimer.
Mediation is a structured settlement conference at which the parties come together and look to a neutral third party (the Mediator) to assist them in trying to settle their case. The injured party, or the Plaintiff, has an opportunity to informally present its position. The Defendant or Defendants have an opportunity to explain their defenses and their position. The neutral third party, often a retired Judge, then works with the parties to try and resolve issues and, ultimately, settle the case.
Many Kentucky personal injury cases go through mediation. The majority of these personal injury cases are settled before a jury trial either at mediation or shortly thereafter. Many Kentucky Judges request the parties to agree to mediation or even go so far as to order the parties to mediation prior to placing a trial date on the Court’s docket. Although there is not yet a Kentucky law mandating mediation prior to receiving a trial date in Kentucky, many Kentucky Circuit Court Judges order mediation in an effort to get cases resolved and get cases off of their dockets.
Many different types of injury cases are mediated. Kentucky medical malpractice cases are often mediated. It is typical for a medical malpractice case to be mediated after a lawsuit is filed. Often the Defendant doctor in a medical malpractice case and his insurance carrier need to take discovery and understand the opinions of expert witnesses and other doctors, nurses, patients, etc. prior to agreeing to attend mediation. Discovery includes the exchange of written questions and answers called “interrogatories”, document requests and oral sworn testimony called “depositions”.
The majority of medical malpractice cases in Kentucky that actually go all the way to a jury trial result in a jury verdict for the Defendant (the doctor and/or the hospital). However, this statistic can be misleading. Many Kentucky medical malpractice cases are settled prior to trial either through negotiations, mediation or a combination.
Other types of Kentucky personal injury cases also use mediation to assist with dispute resolution. Many Kentucky nursing home injury cases, Kentucky nursing home abuse cases and Kentucky nursing home neglect cases are settled through mediation. Kentucky automobile accident cases (car accident cases), Kentucky tractor trailer injury cases (also called semi tractor trailer or 18 wheeler cases), Kentucky motorcycle accident cases and other types of injury cases all use the power of mediation to try to get disputes resolved.
Slip and fall injury cases in Kentucky and dog bite cases in Kentucky also engage in mediation.
Both plaintiffs and defendants see the value in mediation. Getting a case settled early in litigation can save thousands of dollars in expenses, many hours of preparation and the risk of a loss at trial for both sides.
The process of mediation in Kentucky is quite informal. Although mediations can differ from case to case, they typically begin with all of the parties and the Mediator in the same room. The Mediator will begin discussing the goals of the day and the process. Then, the injured party (the Plaintiff) will have an opportunity to tell his or her story followed by the defense explaining its position.
In Kentucky, it is almost always the lawyers that do the speaking for their clients. The parties then separate into different rooms and the Mediator spends the rest of the time carrying messages back and forth between the parties. The messages involve questions of fact, questions of law and the conveyance of demands and offers of money. Most often in Kentucky mediations, the Plaintiff makes a demand of an amount of money that he or she will accept in settlement of his or her personal injury case.
The demand is met with a counter offer by the Defendant. This counter offer is an amount of money that the defendant, defendants and/or the insurance companies are willing to pay to the injured person to settle the case. After several rounds of negotiations and the exchange of information, the parties have an understanding as to whether or not there is a likelihood that the case will settle.
Sometimes Kentucky personal injury mediations uncover questions that need to be answered prior to settlement. In these situations, the parties break from the mediation, get the questions answered and then either revisit mediation in a second session or continue negotiations with or without the assistance of the Mediator.
If you have questions about mediating a personal injury claim in Kentucky, you are welcome and encouraged to contact the law office of Brett H. Oppenheimer, PLLC at (502) 242-8877.