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
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
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 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
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.