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What To Expect In Mediation

What is a Mediation?

Your FELA "claim" is a lawsuit. In many ways it is similar to any other lawsuit, such as a lawsuit for damages arising from a car accident. A trial is a decision by a jury which imposes a result on the parties (you and the railroad). A mediation is an attempt by the court to encourage the parties to settle the case before trial.

Most often, mediation is ordered by the Court in which the lawsuit is filed. Mediation is an informal process. It usually occurs in an attorney’s office. You, your attorney, the railroad’s claims agent, and the railroad’s attorney must be present at mediation. Also present will be a mediator, who is usually a former judge or attorney, who has taken special classes and been certified by the court to mediate cases. The mediator is required by law to be impartial. He or she has no interest in the outcome of the suit. The mediator’s only job is to try to bring about an agreement which all parties believe is fair.

The Benefits of Mediation

A settlement is an agreement between the Plaintiff and the Railroad that, in exchange for a certain amount of money, the Plaintiff will drop his lawsuit and agree never to bring a lawsuit for the same injury again.

Some settlements happen without Court ordered mediation. However, mediation is often the best opportunity to settle the case because a mediator can help the parties reach an agreement and come to a settlement. Mediation does not mean that you must settle your case, or that a settlement will be forced upon you. It is a means to determine if settlement is possible, and, if so, to help the parties come to an agreement on a settlement. Many cases which are mediated do not settle, or sometimes settle later without trial. Other cases never settle and are concluded through trial. Mediation is usually something that you must go through because it is ordered by the Court. It cannot hurt your case, but it may result in a settlement which is in your best interest. Therefore, mediation is always a good idea, because there is nothing to lose, and may be something to gain.

What Will Happen at a Mediation

A mediation is just a meeting, without a judge, or court reporter. It is generally held at an attorney’s office, or sometimes in a meeting room at the Courthouse. There will be no evidence presented, no witnesses, no legal arguments, or any of the other things that you may expect to occur at trial.

The method used by the mediator to try to bring the parties together is generally up to the mediator. He or she may use different techniques at different times. However, mediators generally have the following goals in mind in mediation:

     a) Convince the parties that mediation is the best opportunity to settle the    

          case without trial;

     b) Establish what facts relevant to the lawsuit both parties agree on;

     c) Determine where disagreements lie, and help parties reconsider the merits

         of their case.

To accomplish these goals, a mediator will usually first invite the attorneys to make a short statement regarding what they believe the important facts are, and how they have evaluated the case. The attorneys may also be asked to concede where weaknesses in the case may lie.

Then, the plaintiff is often asked to make a "demand." A demand is the amount of money that the plaintiff has determined would be sufficient to settle the case. Your attorney may (and often does) determine that it is in your best interest to demand more money than you have indicated would settle the case. This is because the opposing party will never pay the amount of the first demand, and will always try to "barter down" the amount of the demand.

The mediator will then often separate the parties (you and your lawyer and the Claims Agent and the railroad’s lawyer) into different rooms and begin to speak with them separately.

The mediator will not divulge any conversations during these private meetings unless requested to do so.

The mediator will then often begin to travel back and forth between the parties conveying messages, information and revised demands or offers of compromise.

The mediator may also begin a more active role of giving his opinion on the value of certain evidence, or the risk of trial given the facts he has been told. He may even suggest an amount at which the case should settle. When the mediator makes these comments, he is not "taking the Railroad’s side." He will be doing the same thing with the railroad, though you will not know what comments he is making to the railroad. It is a part of the mediator’s job to offer, when appropriate, the opinion of a neutral party who has experience in law and trials. You should carefully consider any comments the mediator makes, and ask your lawyer if his opinion differs from the mediator’s.

What if Mediation "Fails"?

Mediation is the best opportunity to settle the case. There is rarely a second mediation and you will rarely again have a person who appears neutral to the railroad to advocate your position after mediation. Therefore, you should take mediation seriously and listen to your lawyer during mediation to determine if settlement is in your best interest.

Oftentimes, however, it may be impossible to settle your case at mediation. The railroad may simply not be willing to offer an adequate settlement amount at that time. Under such circumstances, the mediation will fail. However, between mediation and trial, the case may still settle. This is because the railroad may not have adequately prepared for mediation, or new evidence or facts come to light that make the railroad willing to offer more money than was offered at mediation. Settlement for the right amount is always in your best interest. Settlement avoids the risks and expenses of trial, eliminates appeals, avoids inconvenience to you and your witnesses and gets you your money sooner. Whether the offer is the right amount is complicated and depends on many factors of law and evidence. You should read our brochure "Should You Settle Your Case" for more information. Only your lawyer is in the best position to know what amount is the right amount.

Does Mediation Cost Money?

Yes. Generally, mediators charge an hourly fee. Almost always, mediators’ fees are split 50/50 between the parties. His fees must be paid regardless of whether or not the case settles. Generally, your lawyer will "advance" this fee for you, but any amount advanced will be taken out of any amount you may receive in settlement or in trial.

What You Need to Win

First, you need an experienced attorney. Just as someone would be foolish to have a family doctor perform brain surgery, it would be foolish to have an attorney unfamiliar with FELA law try a FELA case.

Second, you need a FELA attorney who has shown success in trying cases in the Courtroom as well as settling cases without a trial.

Finally, you need an experienced FELA attorney who puts your interests first. Some unethical lawyers will pay a percentage of your recovery to whoever convinces you to hire them. You want a firm to represent you and your interests totally and honestly.

The information contained in this website is for general information purposes only. This is not legal advice. You should contact a qualified attorney about your case.


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