Mediation in a Utah Personal Injury Case

Short answer: Mediation is a structured negotiation run by a neutral mediator who has no power to decide anything. Utah district courts refer civil cases to the court's ADR program once an answer is filed, unless the parties already used another process or are excused. What is said in a mediation is generally privileged under Utah's Uniform Mediation Act. Nothing is settled unless you agree.

What a mediator does, and does not do

Utah law defines mediation as a process in which a mediator facilitates communication and negotiation between the parties to help them reach a voluntary agreement (Utah Code 78B-10-102). The mediator is neutral. The mediator does not rule on evidence, decide who is right, or impose a number. A good mediator does something neither side can do alone: delivers hard news about risk to each room privately, in a way the other side would never be believed.

How cases get to mediation in Utah courts

Under Code of Judicial Administration Rule 4-510.05:

After a responsive pleading is filed, cases subject to the rule are referred to the court's ADR program unless the parties have used another ADR process, such as arbitration or a settlement conference, or the court excuses them for good cause.
The parties choose the mediator, either from the court's roster or a qualified provider pro tempore.
The mediator's fees are paid in advance and split equally among the parties unless the court orders or the parties agree otherwise.
A party that believes mediation is no longer productive may end it by notifying the other side and the mediator.
When the process ends, the plaintiff notifies the court of the outcome.

Parties can also agree to mediate before a lawsuit is ever filed. Whether that is worthwhile depends on whether the evidence is developed enough for both sides to take the risk seriously.

How the day usually runs

Each side typically sends the mediator a written summary of the case ahead of time. On the day, the sides are usually in separate rooms, physically or on video. The mediator hears each side privately, then carries offers and counteroffers back and forth, often with candid commentary on where each position looks weak. Movement early in the day is usually slow; that is normal and is not a sign the mediation is failing.

The people in the defense room normally include defense counsel and someone with authority from the insurer. Your side is you and your lawyer. When the sides are kept in separate rooms, you usually do not sit across from the at-fault driver.

Confidentiality under the Utah Uniform Mediation Act

The Act applies to mediations required or referred by a court, to mediations the parties agree in a record will be privileged, and to mediations run by someone who holds themselves out as a mediator (Utah Code 78B-10-103). It does not apply to a mediation conducted by a judge as part of official duties. Where it applies:

A mediation communication is privileged and is not subject to discovery or admissible in evidence in a proceeding, unless the privilege is waived or precluded (Utah Code 78B-10-104). A party may refuse to disclose, and prevent others from disclosing, a mediation communication.
Evidence that is otherwise admissible does not become protected just because it was used in the mediation. Your medical records stay discoverable, for example.
A waiver generally requires express agreement of all parties, plus the mediator for the mediator's own privilege (Utah Code 78B-10-105).
There are exceptions, including a written agreement signed by all parties, threats of bodily injury, and communications used to plan or commit a crime (Utah Code 78B-10-106).

Beyond the privilege, mediation communications are confidential to the extent the parties agree or other law provides (Utah Code 78B-10-108), and under Rule 4-510.05 a court-program mediator generally cannot be required to testify about the proceeding. Utah Rule of Evidence 408 also generally keeps settlement offers and negotiation statements from being used to prove liability or the amount of a claim (URE 408).

How to prepare

Know your net. Understand what a given settlement figure means after the one-third fee, repayment of case costs, and any medical liens. See medical bills and liens.
Update the file. Current bills, the latest medical opinions, and proof of lost income should be in the mediator's hands, not in a folder at home.
Think about ranges, not a single number. Decide in advance what would be worth accepting, and what would not.
Plan for a long day. Clear your schedule and eat.

You decide

An attorney reviews and approves every demand and every settlement we present, and we will tell you honestly what we think of each number. But the decision to settle is yours, at mediation and everywhere else. If you want to settle, we settle. If you do not, the case continues.

If no agreement is reached, the case goes back on its litigation schedule toward trial. Offers made at mediation often set the frame for later talks, and a party may follow up with a formal Rule 68 offer of judgment, which carries consequences if it is rejected.

Common questions

Is mediation binding?

Only if you sign an agreement. The mediator cannot impose a result. A written agreement signed by all parties is one of the exceptions to the mediation privilege, so it is not shielded the way the negotiations are.

Can the jury hear what I said at mediation?

Generally no, for a mediation covered by the Act, subject to the statutory exceptions. Evidence that exists independently of the mediation remains usable.

Who pays the mediator?

In the court program, fees are split equally unless the court or parties provide otherwise. Our firm advances case costs, which are repaid from the recovery.

Why would the insurer pay more at mediation than it offered before?

By mediation, both sides usually have seen the depositions and records, and the risk of trial is concrete. See why filing a lawsuit can change the offer and what to expect at your deposition.

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