Mediation in a Missouri Personal Injury Case | DIL

About the Author

Ethan Charles (“EC”) Duckworth is the founding attorney of Duckworth Injury Law. EC earned his law degree from the University of Missouri - Columbia, where he graduated in the top 10 of his class and served as an Editor of the Missouri Law Review. EC currently serves as a member of the Missouri Association of Trial Attorneys (MATA) and is a graduate of the Ross T. Roberts Trial Academy. EC has represented hundreds of injury victims throughout his career resulting in tens of millions of dollars in compensation recovered. EC has participated in mediation in dozens of personal injury cases, resulting in millions of dollars of settlements for his clients via mediation. Follow EC Duckworth on LinkedIn.

If Mediation Is Necessary in Your Personal Injury Case, Learn How to Understand the Process With Duckworth Injury Law, Missouri’s Hometown Law Firm

So, your lawyer has told you that the other party has requested “mediation” in your Missouri personal injury case. What does that mean? Mediation is a form of alternative dispute resolution whereby a mediator facilitates settlement negotiations between two or more parties in an effort to resolve the case via settlement and short of continued litigation or trial. Alternative dispute resolution encompasses any method of resolving your case outside the traditional method of a judge or jury determining the outcome of your case at trial. 

The purpose of mediation is to get the parties to come to the negotiation table, to discuss the issues of the case with the help of a neutral third party, and to hopefully resolve the case for a monetary amount agreed upon by all parties. 

Does a Mediator Get to Decide How Much I Will Recover for My Case? 

No, the mediator does not get to decide how much you will receive for your personal injury case, and the mediator has no authority to force you to settle your case. 

Rather, it’s the mediator’s job to listen to the positions of both parties and to provide an objective analysis of the strengths and weaknesses of the parties’ respective positions. While the mediator can (and often does) provide his/her own opinion as to the value of your case and your likelihood of success at trial, it’s ultimately your decision on whether to settle your case and for what amount. 

Who Acts as the Mediator for My Personal Injury Case and How are They Chosen?

Typically, the parties are permitted to pick the mediator on their own if they are able to agree on an individual to act as the mediator. Often, one party will submit a list of possible mediators, allowing the other party to choose the mediator from the list. However, if the parties are unable to agree upon a mediator, the judge can step in and choose the mediator for the parties. 

Often, the mediator will be either a retired judge or a seasoned attorney with experience in the area of law at issue (i.e., an attorney familiar with personal injury law for a personal injury case). It’s important that the mediator is unbiased, with no connection to either the plaintiff or the defendant in the case.

What Should I Expect During the Mediation of My PI Case in Missouri? 

At most mediations, you and your lawyer will be placed in one room, and the insurance company representative and her lawyer will be placed in a separate room. The mediator will begin the mediation by meeting with each party separately, explaining the mediation process, and talking through the basic facts surrounding the case. 

After the mediator has had a chance to visit with both parties, the negotiations will begin. Typically, the party that last received a settlement demand/offer will be required to make the first move at mediation. For example, if the plaintiff previously submitted a demand to the at-fault party’s insurance company and the insurance company has yet to respond, the insurance company will be required to provide its response to that demand first. Or, if the insurance company last made an offer to the plaintiff, the plaintiff will be required to submit a revised demand in response to that offer.

Between each settlement offer, the mediator will meet with the respective parties to discuss the current offer, including the mediator’s analysis of the offer, the case, and any questions the parties have. This process continues back-and-forth for as long as the parties choose to continue negotiating. If the parties are able to reach an agreed-upon settlement figure, the mediation will conclude with each party signing a memorandum of understanding as to the basic settlement terms. If the parties reach a point where one or both parties believe the negotiations are no longer productive, the mediation can conclude without resolution of the case. 

Where Will My Mediation Take Place? 

Usually, the mediation will take place at the office of the mediator. However, occasionally the mediation will take place at the office for the attorney of one of the parties if more convenient for the parties. 

However, it is becoming more and more common these days for the mediation to be conducted remotely via video conferencing (such as Zoom). For remote mediations, the mediator’s office will ensure the communications between the mediator and each party are secure, not allowing one party to listen to the other party’s conversations with the mediator. 

Who Pays for Mediation in a Personal Injury Case? 

In Missouri, the default rule is typically that the parties will jointly split the cost of the mediation. That means if mediation costs $5,000, the plaintiff will pay $2,500 and the defendant will pay $2,500.

However, it’s not unusual when a settlement is reached at mediation for the plaintiff to demand the defendant pay for the cost of mediation as part of the settlement agreement. Using the above example, the plaintiff may state: “I will agree to settle the case for $50,000, but the defendant must also pay the $5,000 mediation cost.” This agreement will need to be reflected in the memorandum of understanding regarding the settlement terms at the conclusion of the mediation. 

Can I Choose Not to Mediate My Case? 

It depends. Oftentimes, mediation is required by the judge in your case. If ordered by the judge, then mediation is required. Even if you are not required to resolve your case at mediation, the judge will require that you attend the mediation and give a “good faith effort” towards settlement negotiations. 

If the judge on your case does not order mediation, but it is simply requested by the other party, you can choose to decline their offer and refuse to mediate your case.

Duckworth Injury Law Can Help You Navigate the Mediation Process in Your Missouri Personal Injury Case

While mediation can sound like an intimidating process for a party that has never had to go through it, there should be nothing to worry about. Your attorney should be able to explain the process, what to expect, and they should set realistic expectations regarding settlement value. It’s important to remember that while you may have to go to mediation for your personal injury case, you are not required to accept any settlement offer at mediation. It’s your case, and it's ultimately your call as to whether you want to resolve the case during mediation. Your attorney and the mediator are simply there to provide you with all of the information you need to make that decision. 

Duckworth Injury Law is proud to have represented dozens of mid-Missouri accident victims in mediation, resulting in millions of dollars in compensation recovered via settlements at mediation. If you need local, aggressive, and knowledgeable legal representation for an upcoming personal injury mediation, don’t hesitate to reach out to our firm. Whether the accident occurred due to a car accident in Columbia, MO, a motorcycle crash in Jefferson City, or a boating accident at the Lake of the Ozarks, EC Duckworth takes pride in representing mid-Missouri families who need it the most. 

Call us today for a free consultation on your Missouri personal injury case.