Selecting a Mediator in a Car Accident Lawsuit

Selecting a Mediator in a Car Accident Lawsuit

There are a number of things to consider when choosing a mediator to assist in resolving a personal injury car accident lawsuit. First, the mediator has to be acceptable to the plaintiff's accident lawyer and the insurance company. This means that mediators who are perceived as pro-plaintiff or pro-insurance company are unlikely choices. You might think a mediator who is slanted towards accident victims is good for your client. It is not. Assuming the unlikely event that the insurance company's attorney is willing to use an untested mediator, the scent of bias can quickly permeate a room pretty quickly. There are some cases wherein the mediator clearly may have favored for whatever reason a particular side. It is a recipe for a failed meditation because no one likes playing against a stacked deck. Lawyers and their clients who are dealt this hand from the mediator tend to feel "the fix" is on, a feeling that is prelude to a failed mediation.

What is the solution? There are a minority of mediators who have established a deserved reputation as being "above the fray" and have the gravitas with the insurance companies that gives them a veneer of credibility and the freedom to call a case as they see it and to push the parties in the direction of fair resolution. Not invariably but usually, these mediators are retired judges, who have credibility with both parties as fair and have established reputations as neutrals. In 2009, there are not many Edward Bennett Williams' left: few career lawyers who have achieved great success in a particular practice area are recognized as equally weighted towards plaintiffs and defendants. In contrast, retired judges have spent much of their careers as neutrals.

Another good lesson learned is not to use a mediator who has been used repeatedly by the opposing party, even if the mediator is expected to be fair to both parties. Why? Take a lesson from pro football: in 2008, the Baltimore Ravens fired Brian Billick, their Super Bowl winning coach, after a bad season. With largely the same personnel, the team came within one game of the Super Bowl the next year. Did Billick forget how to coach? Of course not. But players may have tired over the years of the same message from the same person. When it comes to arm twisting in settlements, too much familiarity may lead to a more limited ability to arm twist and a diminution of the "on this one, I'm really going to need you to be more flexible" push from the mediator. Of course, this assumes that you want an "arm twisting" mediator, which can be invaluable in some car accident cases, with some parties, and with some attorneys.

You also should pick a mediator who has a style that works with yours. Mediators frequently have a standard formatare they going to first meet everyone together and hear some version of "opening statements" in a group setting? Or, are the parties and their attorneys going to be instantly segregated? Will the mediator engage in "caucus" style mediation (also known as shuttle diplomacy), where the mediator travels back and forth between the parties to discuss proposals and communicate offers? Importantly, mediators understand that however they approach the mediation, there are strict rules about confidentiality, codified in Maryland Rule 17-109. Mediators must be careful to ascertain exactly what information each party is allowing them to take to the other side, and what information is for the mediator's ears only. The mediator must be careful about the manner in which he uses confidential information.

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