When you are pursuing an injury claim, you may have options and steps to get to your final payout. Two important steps are mediation and litigation, but both – or neither – may actually happen in your case.
Litigation is the general process of taking a case to trial. This starts with filing your complaint in court and encompasses any briefs, hearings, or other stages, including trial itself. If you settled your case before filing, you don’t need to litigate it. Mediation is an alternative to trial, where parties sit down and discuss terms of settlement with a neutral mediator, but it is non-binding and may not even come up in your case. Cases can go to mediation then still end up at trial.
Contact Rhatigan Law Offices’ Illinois personal injury attorneys at (312) 578-8502 to get started on your case.
What is Litigation?
Litigation is the process of taking a case to court and getting it to trial. When you file your claim in court, you start the litigation process. Many cases start with litigation, but they do not get all the way to trial even if you file a lawsuit.
Cases can settle before trial – and some settle before even filing litigation in the first place. This early settlement is especially likely when insurance companies are willing to settle cases, or when facts are very strong and the insurance company has no reason to fight.
What is Mediation?
Mediation is an alternative to trial. Like arbitration, parties can go to mediation instead of taking the case to trial. If mediation is successful, you may walk out with a settlement, but this is not required or mandatory.
Many parties use mediation along the course of litigation, though some contracts and judges may require it as a mandatory part of the case. When you go to mediation, you sit down and discuss terms of settlement, but your case is not actually settled until you sign a settlement.
Mediation often ends with a Memorandum of Understanding (MOU), where both sides lay out their wants and needs, and the course that they could take to settle the case. Sometimes you walk out with a signed settlement. Otherwise, parties can use the MOU to write up the settlement, then sign it afterward.
Differences Between the Two
Some important differences exist between mediation and litigation:
Are They Necessary?
If you cannot negotiate a settlement with the defense or their insurance early on, then filing a lawsuit – litigating the case – might be your only way forward.
Mediation is usually optional, though some contracts might require it before letting you go to trial. Some judges might also require it, but they typically skip mediation in cases where there is no hope of settling.
Judges may require you to start mediation and make a good faith effort to get through it before they schedule trial. However, if you aren’t getting anywhere and it’s a waste of time, you can walk away from mediation. If the mediator agrees there is no coming together, the judge will usually accept your good faith attempt and not make you go back to try again.
When Do They Happen?
Litigation starts when parties have no other negotiations or way forward. Mediation – as well as other settlement negotiations – still take place along the path toward trial.
Typically, mediation will be schedule after the discovery stage of trial, the stage where evidence is exchanged.
Are Decisions Binding?
When litigation concludes with a trial, the decision is binding. Juries determine fault and damages, and the judge orders the defendant to pay. This is legally required, and failing to pay can mean penalties and enforcement.
Courts have legal authority over everyone under their jurisdiction and can order them to pay damages.
Mediation is not binding unless you actually sign a settlement. You are legally free to walk away from mediation, and no findings, facts, arguments, admissions, or MOUs are binding on the rest of your case without a signed settlement.
Mediators have no authority over the parties, except for the basic courtesy the parties give them to manage the schedule, speaking order, etc. during mediation sessions. Parties do not agree to be bound by the mediator’s decisions, nor do they give up any decision-making authority to the mediator.
Who’s Involved?
In mediation, it’s just the parties and a mediator. There is no judge or jury, and nothing you say or do in mediation will typically be presented to others outside of mediation.
In litigation, you go before a judge in open court. Unless you are doing a bench trial, you use a jury in the trial as well. Unless there is a need to seal sensitive cases, everything is done in public.
Litigation also involves other court personnel like clerks, stenographers, and other staff.
Mediation FAQs
What is Mediation?
Mediation is a meeting where both sides sit down with a mediator and try to come to an arrangement about how to resolve the case without going to trial.
Is Mediation Required?
Some contracts require mediation, and judges might require parties to attempt mediation before scheduling a trial. If mediation is very unlikely to work, you can typically skip it.
Is Mediation Binding?
The results of mediation are usually a Memorandum of Understanding laying out what the parties have agreed will help them. Nothing is binding until you sign a settlement, and some mediation attempts end without even getting an MOU, let alone a settlement.
Is Mediation the Same as Settlement?
No. A settlement occurs when both sides sign an agreement to end the case and exchange whatever damages they agreed to. Mediation is often a step toward settlement, but your case is not settled just because you went to mediation; you need to actually sign a settlement.
Is Mediation Part of Trial?
No. Mediation is a separate process with its own rules and standards, but it is often used as a step on the way to trial.
Is There a Judge and Jury in Mediation?
Judges might order you to go to mediation, but the judge is not involved in the mediation sessions. Some mediators are former judges, but they do not wield judicial authority in mediation.
There is never a jury in mediation.
What is Arbitration?
Arbitration, like mediation, is an alternative to trial. However, you usually only go to arbitration when you have a contract in place containing an agreement to use arbitration instead of being able to sue.
In arbitration, you usually agree in advance to be bound by the arbitrator’s decisions and findings. Instead of taking the case to a judge and jury, the arbitrator decides the facts and damages. That makes it mandatory and binding, unlike mediation, where you can walk away with no binding decisions.
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