Mediation is a popular form of dispute resolution because of its success rate and relatively low cost. Whether mediation is court-ordered or entered through mutual agreement of the parties, it can become legally binding once both parties sign a mediation agreement, with a few exceptions.
What Is Mediation?
Mediation is a meeting where the parties of a case sit down with a mediator who will assist in negotiating a mutually acceptable resolution. The mediator is an impartial and neutral person who is usually an attorney with an understanding of personal injury law or law relevant to the case. Generally, a mediator will be mutually agreed upon by the party’s attorneys, but if the attorneys cannot agree, the court may appoint a mediator.
The purpose of mediation is to have a cooperative conversation about the case with the guidance of a neutral third party. Mediation is usually confidential, meaning what is said during mediation cannot be used at a trial if mediation is unsuccessful. This encourages everyone to be honest and open and increases the likelihood of a successful mediation process.
What Is Not Confidential During a Mediation in South Carolina?
While the purpose of mediation is to discuss the strengths and weaknesses of a case without the fear of any information provided being used during the trial. If the mediation is unsuccessful, there are some types of information that will not be confidential, such as:
- Information for which confidentiality was waived or stipulated to by all parties
- Information that is used in the furtherance of a crime, concealment of ongoing criminal activity, or threats of violence
- Information concerning professional malpractice (solely for a professional malpractice proceeding)
- Information to support or refute a settlement agreement reached during mediation
- Information concerning professional misconduct that occurred during mediation
How Does Mediation Work in Personal Injury Cases?
Generally, when someone has a personal injury claim, an experienced attorney will attempt to negotiate a settlement with the other party before filing a lawsuit. If settlement negotiations are unsuccessful and a lawsuit is filed, the parties may choose to go to mediation to try and reach an agreement before the trial begins. In some cases, the court may order that the parties go to mediation if the court believes that the parties can reach an agreement outside the court.
During mediation, the parties begin the session in the same room. Both sides will have opening statements, and then they will go to separate rooms. The mediator will go from room to room to have discussions with each party and to carry offers and counter-offers between the parties. The mediator will offer suggested solutions to help resolve the disputes between the parties. However, unlike a judge or jury during the trial, if mediation does not end with a mutually agreed resolution, the mediator cannot provide a judgment that the parties must obey.
Does Mediation Mean Settlement?
Mediation is not legally binding unless the parties enter a settlement agreement. If the parties come to an agreement, the mediator may draft the agreement, and both parties must sign it. If a mediation agreement is signed, it becomes an enforceable settlement agreement, with a few exceptions. As a result, if a signed mediation agreement is violated, there can be legal consequences for the violating party.
There are a few circumstances in which a contract is not legally enforceable, including:
- Fraudulent misrepresentation
- Mental incapacity of one of the parties
- Undue influence over one of the parties
- Duress of one of the parties
- Illegality of the contractual expectations
When a mediation agreement is entered, and it is not legally enforceable, it will be set aside by the court. For these reasons, it is best to have an attorney at your side when you enter into mediation.
Contact an Experienced Personal Injury Attorney Today
Filing a personal injury lawsuit may feel daunting and stressful, but you deserve compensation for losses you incurred because of another person’s negligence. A skilled Columbia personal injury attorney from Goings Law Firm, LLC could assist you with your personal injury lawsuit. Goings Law Firm, LLC proudly represents clients from all over South Carolina and is ready to vigorously fight for your best interests.
Call us at (803) 350-9230 or contact us online for a free consultation if you have sustained injuries because of someone else’s negligence.