If a lawsuit is filed in your motor vehicle negligence case in the Superior Court of North Carolina, it is mandatory that your case be mediated. Mediation is a process by which both sides will sit down with an independent mediator who will attempt to help both parties reach a settlement.
Mediation usually (but not always) occurs after the discovery phase of your lawsuit. Your attorney and the attorney for the defendant will agree upon an independent mediator. In cases where the attorneys cannot agree on a mediator, a judge can become involved and appoint a mediator. The mediator is usually an attorney who has some knowledge about motor vehicle cases, but will not know any specifics about your individual case.
On the day of the mediation, all of the parties are required to attend. This includes you (as the plaintiff) and your attorney, as well as the defendant, the attorney for the defendant, and a representative from the defendant’s insurance company. The mediation is usually held in one of the attorney’s offices.
The mediation will begin with an opening statement from the mediator to both parties. In this statement, the mediator will usually tell the parties how the mediation will be conducted and reiterate that while settlement is the goal, neither party will be compelled to settle their case if they do not want to. Any discussions of settlement at the mediation are not later admissible in court if the case does not settle and a jury trial ensues.
After the opening statement by the mediator, the plaintiff’s attorney will have the opportunity to give a summary overview of the plaintiff’s case. This can be a simple as an oral statement summarizing the facts of the case, to as complex as a power point presentation with video and other demonstrative evidence. Next, the attorney for the defendant will give a summary of their opinion on the case as well as any evidence they have that contradicts the plaintiff’s evidence.
After the opening statements, the parties are now split into two different rooms and will usually remain apart for the remainder of the mediation. The mediator will then go back and forth between the two rooms and will work with both sides to attempt to settle the case. This includes the mediator discussing with both sides the pros and cons of their case, as well as offering solutions on how to get the case settled. It is important to remember that while the mediator is in with you, that he or she is usually playing “devil’s advocate” and will be pointing out to you the bad things about your case, and the good things about the defendant’s case. This is part of their effort to get you to consider a settlement amount that may be lower than what you had hoped to get. Rest assured, the mediator is doing the same exact thing in the other room with the defendant.
If your case is going to settle at mediation, it is going to be settled for an amount that is less than what you wanted (but hopefully more than what was offered prior to the filing of your lawsuit). This is because most settlements at mediation are for a “compromised” amount, meaning an amount less than what you wanted but taken to avoid the risk of going to trial and getting less. It is often said at mediations, “A sign of a good mediation is where everyone leaves mad”. This is simply another way of saying that the plaintiff will usually take less than what they wanted, but the defendant paid more than what they wanted.
There is no set time limit for how long a mediation will last. It can take as little as an hour or can last all day. It just depends if progress is being made. The mediator usually charges an administrative set up fee (approximately $125) and then bills his or her time by the hour (on average $150 per hour). At the end of the mediation, the cost of the mediator’s fee is split between the parties to pay in equal amounts.