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Legal Guide

Personal Injury Mediation: Is It Binding, How the Day Runs, and How to Prepare

Mediation is the step most injury claims pass through on the way to a number, and the one people arrive at with the wrongest idea of what it is. It is not a hearing. Nobody rules on anything, nobody testifies, and the person running the room has no authority to make you accept a dollar. What mediation can produce is a document, and that document is where the binding happens. This guide covers the difference between mediation, arbitration and a settlement conference, what binds and what does not, how a mediation day is structured, who can order you into one, what to bring, and what the bill looks like.

Quick answer

Mediation is a settlement negotiation run by a neutral person who has no power to decide anything, so the mediation itself binds nobody and either side can leave without a deal. What binds is the settlement agreement signed at the end: state confidentiality statutes shield everything said in the room and then carve out the signed writing as the exception, as California does in Evidence Code sections 1119 and 1123. An oral deal usually does not bind, and a state that allows one sets hard conditions, such as California’s rule in Evidence Code section 1118 that the terms be recorded, agreed to on the record, and reduced to a writing signed within 72 hours. Read every term sheet before signing it, because the signature, not the day, is what closes your claim.

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By the CaseValue.law Editorial TeamLast updated and source-checked September 14, 2026How we estimate

Mediation, arbitration and a settlement conference are three different things

All three put a neutral person between the parties, and that is where the similarity stops. The difference that matters is who holds the power to decide, because it decides what you are walking into.

Mediation: a neutral who cannot decide anything

California defines mediation as a process in which a neutral person facilitates communication between the disputants to assist them in reaching a mutually acceptable agreement (Cal. Evid. Code section 1115(a)). Washington, which enacted the Uniform Mediation Act, defines it as a process in which a mediator facilitates communication and negotiation between parties to assist them in reaching a voluntary agreement (RCW 7.07.010(1)). Both definitions leave the mediator without power to rule, award or enter judgment. Washington goes further: under RCW 7.07.060(1) a mediator may not send a report, assessment, evaluation, recommendation or finding about the mediation to a court or agency that may rule on the dispute, and under 7.07.060(3) a communication made in violation of that rule may not be considered by the court.

Arbitration: a neutral who does decide

An arbitrator hears the dispute and issues an award. In federal court the difference is written into the statute: under 28 U.S.C. 654(a) a district court may send a civil action to arbitration only when the parties consent, and not at all where the action is based on an alleged violation of a right secured by the Constitution, where jurisdiction rests in whole or in part on 28 U.S.C. 1343, or where the relief sought is money damages greater than $150,000. Under 654(b) each district court must adopt procedures ensuring that consent is freely and knowingly obtained and that no party or attorney is prejudiced for declining. Mediation carries no such consent requirement, because mediation decides nothing.

The settlement conference: the court doing it itself

A settlement conference is court machinery rather than a private neutral. Fed. R. Civ. P. 16(a)(5) lists facilitating settlement among the purposes for which a court may order attorneys and unrepresented parties to appear at a pretrial conference, and Rule 16(c)(2)(I) lets the court take up settling the case and using special procedures to assist in resolving the dispute when authorized by statute or local rule. Under Rule 16(c)(1) the court may require that a party or its representative be present or reasonably available by other means to consider possible settlement. Attendance is not optional: Rule 16(f)(1) authorizes sanctions where a party or its attorney fails to appear, is substantially unprepared, or does not participate in good faith, and Rule 16(f)(2) makes a reasonable-expenses award, attorney’s fees included, mandatory for noncompliance that was not substantially justified.

What all three share

None of them ends your claim by itself. A mediation that produces nothing leaves the case exactly where it was, an arbitration that the parties never consented to does not happen, and a settlement conference that breaks up sends the case back onto the trial calendar. The only instrument that closes an injury claim is a signed agreement and the release that follows it.

Is mediation binding? The mediation is not. The signature is.

This is the question the page exists to answer, and the answer has three parts: the process binds nobody, the signed writing binds everybody, and an oral deal usually binds nobody either.

The process binds nobody. Every statutory definition of mediation describes a neutral who assists, facilitates and communicates, and none of them describes a neutral who decides. You can arrive, listen to an offer, decline it and leave, and the claim is untouched. Under RCW 7.07.090 an attorney or other individual designated by a party may accompany that party to a mediation and take part in it, and a waiver of that right given before the mediation can be rescinded, which is the shape of a process built around consent rather than compulsion. The mediator’s leverage is information and patience, not authority.

What binds is the signed writing, and the mechanism is the confidentiality rule turned inside out. California starts from total exclusion: under Cal. Evid. Code section 1119, nothing said for the purpose of or in the course of a mediation is admissible or subject to discovery in a later noncriminal proceeding, no writing prepared for a mediation is admissible or discoverable, and all communications, negotiations and settlement discussions between the people in the room stay confidential. Section 1123 then cuts one hole in that wall: a written settlement agreement prepared in the course of a mediation is not inadmissible or protected from disclosure if it is signed by the settling parties and one of four conditions is met, the first two being that the agreement says it is admissible or subject to disclosure, or says it is enforceable or binding, or words to that effect. Washington runs the same structure: RCW 7.07.030 makes mediation communications privileged and undiscoverable, and RCW 7.07.050(1)(a) removes the privilege for a communication that is in an agreement evidenced by a record signed by all parties to it. Florida states the point flatly, at Fla. Stat. 44.405(4)(a): there is no confidentiality or privilege attached to a signed written agreement reached during a mediation, unless the parties agree otherwise.

That is why the document is the event. A settlement agreement written to be enforceable is the one thing from the day that can be shown to a judge; everything around it was built by statute to be unusable. The practical consequence is that a term sheet handed to you at nine in the evening, after eleven hours in a windowless room, is not a formality. It is the instrument.

An oral deal usually does not bind, and a state that permits one fences it. California allows an oral mediation agreement only on four conditions set by Evid. Code section 1118: the agreement is recorded by a court reporter or reliable audio recording; its terms are recited on the record in the presence of the parties and the mediator and the parties say on the record that they agree to them; the parties expressly state on the record that the agreement is enforceable or binding, or words to that effect; and the recording is reduced to writing and the writing is signed by the parties within 72 hours after it is recorded. Four conditions, one of them a 72-hour clock, is what "we shook on it" is worth in a state that allows oral agreements at all. Many states allow no such thing. Whether yours does, and what it requires, is state law, so read your state’s statute with a licensed attorney in your state and use the state module on this page for the filing deadline and fault rule that frame the whole negotiation.

Finally, a mediation that fails costs you nothing evidentiary. In federal court Fed. R. Evid. 408(a) makes evidence of offering or accepting a valuable consideration to compromise a disputed claim, and of conduct or statements made during compromise negotiations, inadmissible to prove or disprove the validity or amount of the claim or to impeach by a prior inconsistent statement, though Rule 408(b) lets a court admit it for another purpose such as proving a witness’s bias. The state mediation statutes above go further still, shielding the communications from discovery, not just from the jury.

How a day of mediation actually runs

No statute scripts this. The sequence below is the ordinary shape of a civil mediation, and the legal points inside it are marked to the rule they come from. Run the calculator before the day so the figures you argue from have a frame.

  1. 1

    The mediator opens and sets the ground rules

    The neutral explains what the day is: a negotiation, not a hearing, with no ruling at the end. Expect the confidentiality rules to be stated out loud, because they are the thing that makes candor safe. In California an attorney has to have handled this earlier: Evid. Code section 1129 requires the attorney for a client in a mediation, outside class and representative actions, to give that client a printed one-page disclosure of the confidentiality restrictions in at least 12-point font and obtain a signed acknowledgment, as soon as reasonably possible before the client agrees to take part.

  2. 2

    The joint session, if there is one

    Both sides sit in the same room and each summarizes its case. Some mediators skip it, some parties refuse it, and nothing requires it. Where it happens it is short, aimed at the other side’s decision-maker rather than the mediator, and it is the only part of the day the adjuster hears in your own voice.

  3. 3

    The parties split into separate rooms

    The rest of the day runs in caucus: the mediator moves between rooms carrying offers and arguments. California protects this explicitly, since section 1119(c) keeps all communications, negotiations and settlement discussions between the people taking part confidential, which is what lets you tell the mediator a number you would never put in a letter. Ask the mediator what is being carried across and what is being held back; a caucus disclosure is yours to control.

  4. 4

    The demand and the first response

    Usually your side restates a demand and the insurer responds with a figure well under it. A first response far below your documented losses is a negotiating position, not a valuation. The answer is to make the next move an argument rather than a number: the bill that was overlooked, the physician’s restriction, the fault evidence the file ignores.

  5. 5

    Brackets, when straight numbers stall

    A bracket is a conditional move: one side says it will come to X if the other will come to Y. It compresses several rounds into one and reveals where each side thinks the middle is. Brackets are pure practice, not law, and nothing about proposing or rejecting one binds you.

  6. 6

    The mediator’s proposal, if the gap will not close

    The mediator names a single figure and asks each side privately to accept or decline it, reporting only whether both accepted. It is a device for getting past a stalemate neither side wants to concede first, and it is still only an offer: declining it ends nothing, and accepting it means nothing until the writing is signed.

  7. 7

    A signed term sheet, or an impasse

    A deal is written up and signed before anyone leaves, or the mediator declares impasse. California defines the end for confidentiality purposes at Evid. Code section 1125: the mediation ends when the parties execute a written settlement agreement resolving the dispute, when an oral agreement is reached under section 1118, when the mediator or a party gives the participants a signed writing stating the mediation is terminated, or when 10 calendar days pass with no communication between the mediator and any party about the dispute, a period the parties may shorten or extend by agreement.

Estimate your claim before you mediate

When mediation happens, and who can make you go

Mediation can be voluntary and pre-suit, or it can be something the court sets in motion. Which one you are in changes almost nothing about the day and everything about whether you can decline.

  • Federal court: every district has a program, by statute

    The Alternative Dispute Resolution Act of 1998 sits at 28 U.S.C. 651 to 658. Section 651(b) requires each United States district court to authorize the use of alternative dispute resolution processes in all civil actions by local rule, and to devise and implement its own program to encourage and promote their use. Section 651(a) defines such a process as any process other than adjudication by a presiding judge in which a neutral third party participates to assist in resolving the issues, naming mediation among them. Section 651(d) requires each court to designate a knowledgeable employee or judicial officer to run the program.

  • Federal court: you must at least consider it

    Under 28 U.S.C. 652(a) each district court must, by local rule, require litigants in all civil cases to consider using an alternative dispute resolution process at an appropriate stage of the litigation, and must make at least one such process available, mediation included. A district that chooses to make the use of a process compulsory may do so only for mediation, early neutral evaluation and, with consent, arbitration. Section 652(b) lets a court exempt specific cases or categories where the process would not be appropriate, and 652(d) requires every district court to provide by local rule for the confidentiality of these processes and to prohibit disclosure of confidential communications.

  • Federal court: the judge’s own settlement track

    Separately from the ADR program, Fed. R. Civ. P. 16 gives the court its own levers. The scheduling order under Rule 16(b) sets the case clock, and the judge must issue it within the earlier of 90 days after any defendant has been served or 60 days after any defendant has appeared, absent good cause for delay. Settlement is a listed purpose of a pretrial conference under Rule 16(a)(5) and a listed subject for one under Rule 16(c)(2)(I).

  • State court: the rule varies, and some states are close to automatic

    Florida is the clearest example of a state that makes it easy to compel. Under Fla. Stat. 44.102(2)(a) a court must, on the request of one party, send any filed civil action for monetary damages to mediation, provided the requesting party is willing and able to pay the costs or the costs can be equitably divided between the parties. The section then lists what is carved out, including a landlord and tenant dispute with no personal injury claim, an action filed to collect a debt, a claim of medical malpractice, an action governed by the small claims rules, and cases where the parties have already agreed to binding arbitration. Other states set their own rules, and many leave it to local court rules rather than a statute; your state’s rule is the one that governs you.

  • Before a lawsuit exists: by agreement, any time

    Nothing stops a claimant and an insurer from mediating before suit, and many do it once a demand has been answered and the parties are far apart but both serious. The Judicial Branch of California describes the general case for it plainly: most civil disputes are resolved without filing a lawsuit and most civil lawsuits are resolved without a trial, and alternative dispute resolution is usually less formal, less expensive and less time-consuming than a trial.

  • Who the mediator is, and what they had to disclose

    In a court program the neutral usually comes from a court-maintained roster. In Florida the chief judge of each judicial circuit keeps a list of mediators certified by the Supreme Court who have registered for appointment in that circuit (Fla. Stat. 44.102(4)). Washington puts a duty on the individual: under RCW 7.07.080 a person asked to serve as mediator must make an inquiry reasonable under the circumstances to find any known facts a reasonable individual would consider likely to affect the mediator’s impartiality, including a financial or personal interest in the outcome and an existing or past relationship with a party or a foreseeable participant, and must disclose any such known fact as soon as is practical before accepting. Under RCW 7.07.080(3) a mediator must also disclose their qualifications to mediate the dispute at a party’s request, and under 7.07.080(4) a person who violates the disclosure duty is precluded from asserting the confidentiality privilege. If you were not told who is paying the neutral and what their prior dealings with either side have been, ask.

How to prepare: the file, the figure and the walk-away number

Mediation rewards preparation more than argument, because the other side already knows the law and has not read your file. Assemble these before the date. Print the list and tick each line.

  • The demand letter and every written response to it

    The demand is the argument you have already made; the insurer’s replies are the reasons it gave for discounting the claim. Bring both, because the day is largely a live version of that exchange and you want the written record of each concession already made.

  • The complete medical file, not the summary

    Records and itemised bills from every provider, imaging reports, the discharge or prognosis in the treating physician’s own words, and a written estimate of future care where treatment continues. A diagnosis in a record outweighs any adjective you can supply.

  • Every lien and reimbursement claim, in writing

    Medicare, Medicaid, a health plan, a hospital, a med-pay claim or a provider treating on credit can each take part of the recovery. A figure you accept without knowing what comes out of it is a figure you cannot evaluate, and the lien guide on this site walks the order the money is divided in.

  • A written schedule of economic losses

    Medical specials totalled, lost income with pay records and an employer letter, out-of-pocket costs with receipts, and future care priced by a physician. One page, each row tied to a document you can hand across the table.

  • The calculator figure, understood as an estimate

    The calculator on this site frames a range from your bills, lost income, injury severity and your state’s fault rule. It is an estimate and nothing more: not an appraisal, not a prediction, and not evidence. Its use is that it stops the first number you hear from becoming your anchor.

  • Your walk-away number, written down before you arrive

    Decide in advance, in daylight, the figure below which you would rather keep litigating, and write it down with the reasoning. The reason to fix it early is that the room is engineered to move you, and a number set at hour eleven is set by fatigue.

  • Who has to be there, and with what authority

    Confirm that whoever can actually approve a settlement will be present or reachable. In federal court the court may require a party or its representative to be present or reasonably available by other means to consider possible settlement (Fed. R. Civ. P. 16(c)(1)), and Rule 16(f) backs that with sanctions and a mandatory fee award for noncompliance that was not substantially justified.

  • The confidentiality disclosure your state may require

    In California your attorney must give you a printed, separate, single-page disclosure of the mediation confidentiality rules in at least 12-point font, signed and dated by both of you, before you agree to take part (Cal. Evid. Code section 1129). Other states handle it differently or not at all. If you are handed one, read it: it tells you what leaves the room and what does not.

  • A clear head about what the day cannot produce

    No ruling, no finding of fault, no apology anyone is compelled to make, and no order. If what you need from the process is a determination that the other side was wrong, mediation is not the forum, and that is worth knowing before you take the date.

If only three things get done: total the economic losses on one page, get every lien in writing, and fix the walk-away number before the date.

Run the numbers before the date

Do not sign a term sheet you have not read

The term sheet at the end of a mediation is drafted fast, often by the other side, at the end of a long day, and it is the one document from the whole process that a court can be shown. California’s section 1123 makes a written agreement admissible precisely when it is signed by the settling parties and states that it is enforceable or binding; Washington strips the privilege from a communication that is in an agreement evidenced by a record signed by all parties (RCW 7.07.050(1)(a)); Florida attaches no confidentiality or privilege to a signed written agreement reached during a mediation (Fla. Stat. 44.405(4)(a)). Everything else that happened is protected. This page is not.

Before signing, read for these five things: the exact settlement figure and who pays it; a deadline for funding; who is released and for what, including whether the release covers claims you have not discovered; how the liens are to be handled and out of whose share; and whether the document says it is binding and enforceable, which is what makes it so. If a term you do not understand is in it, the answer is to slow down, not to initial it. A licensed attorney in your state can read it with you before you sign.

After mediation: what happens whether or not you settled

The day ends in one of two states, and each has a sequence that follows it.

  • If you settled: the term sheet becomes the formal agreement

    The signed term sheet is usually followed by a longer settlement agreement and a release drafted to carry out its terms. Read the long form against the short one, line by line. A release that is broader than the term sheet, or that adds parties or claims nobody discussed, is a change to the deal and not a formality.

  • The liens still have to be resolved before you see money

    A settlement figure is not a net figure. Every payer with a claim on the recovery has to be identified, audited and paid or reduced in writing, and the funds ordinarily stay in trust while that happens. Starting lien work after the mediation rather than before it is the most common reason a settled case takes months to pay.

  • If you did not settle: nothing said in the room can be used

    That is the entire point of the confidentiality architecture. Under Cal. Evid. Code section 1119 nothing said or written for the mediation is admissible or discoverable in a later noncriminal proceeding; under RCW 7.07.030 mediation communications are privileged and not subject to discovery; under Fed. R. Evid. 408 compromise offers and statements made during compromise negotiations cannot be used to prove or disprove the validity or amount of the claim. Evidence that was independently admissible does not become protected just because it came up in mediation (RCW 7.07.030(3); Fla. Stat. 44.405(5)).

  • Formal offers can restart once impasse is on the record

    Florida shows how the pieces interlock: under Fla. Stat. 44.102(5)(a), when an action is sent to mediation by court order the time to respond to a statutory offer of settlement or an offer or demand for judgment is tolled until the mediator declares an impasse or reports that no agreement was reached, and under 44.102(5)(b) such an offer may then be made at any time, with an offer deemed rejected as of the commencement of trial. Other states have their own offer-of-judgment machinery; the interaction between it and a failed mediation is worth asking about.

  • A second session is not unusual, and is contemplated by the rules

    Mediations reconvene, often after one side gets a document the other has been asking for. California treats a communication made for the purpose of reconvening a mediation as part of the protected process (Cal. Evid. Code section 1115(c)), and its 10-calendar-day silence rule in section 1125(a)(5) can be shortened or extended by agreement, which is the statute anticipating exactly this.

  • The filing deadline never paused

    A mediation date, a pending negotiation and a mediator’s optimism do not extend the time you have to file suit. That deadline is state law and it is the one clock in the case that nobody in the room controls. Use the state module on this page to see yours before you agree to a second session.

What mediation costs, and who pays for it

There are two separate bills: the neutral’s fee, and your own side’s cost of preparing. The figures below are invented to show how the arithmetic works; none of them is a rate, an average or a prediction for any case.

  • The neutral is paid by the parties unless a program says otherwise

    A private mediator charges for time, and the parties ordinarily split it, though the split is negotiable and is sometimes conceded by a defendant who wants the date. Court programs vary: in Florida, where a mediation program is funded under Fla. Stat. 44.108 a mediator may be compensated by the county or by the parties, and the statute directs that qualified individuals who have volunteered their time be appointed whenever possible, with volunteers entitled to reimbursement of actual expenses (Fla. Stat. 44.102(4)).

  • Ability to pay is built into Florida’s compulsion rule

    The mandatory-on-request provision in Fla. Stat. 44.102(2)(a) is conditioned on the requesting party being willing and able to pay the costs of the mediation, or on the costs being capable of equitable division between the parties. Cost is not an afterthought in that statute; it is part of what makes the order available at all.

  • A judge-hosted settlement conference has no separate neutral to pay

    A Rule 16 pretrial conference is conducted by a judicial officer as part of the case, not by a privately retained neutral, so there is no mediator’s invoice attached to it. What it costs is preparation and the same attendance obligations Rule 16(c) and 16(f) impose.

  • Your own preparation is the cost you control

    Records, imaging copies, a physician’s written future-care estimate and the time to assemble them are ordinarily advanced as case costs and reimbursed out of the recovery. They are also what moves the number, so this is the least useful place to economize.

Illustrative example, invented numbers, not a prediction
Mediator’s fee for the session (placeholder)
$3,000
Split evenly, your side’s share
$1,500
Gross settlement reached at mediation (placeholder)
$90,000
Attorney’s fee at a placeholder 33% of the gross
-$29,700
Case costs advanced, the $1,500 mediation share included (placeholder)
-$6,500
Liens resolved and paid from the recovery (placeholder)
-$12,000
Net to the client in this example
$41,800

Three things to do now: write down your walk-away number and the reasoning behind it, get every lien figure in writing before the date, and read the term sheet start to finish before you sign anything. A licensed attorney in your state can tell you which mediation rules apply where your claim sits. Nothing on this page is legal advice.

See what a settlement leaves you

Your state changes the rules

Whether a court can order you to mediate, and what it takes to enforce a mediated agreement afterwards, are both state law and are not in the state database. Pick your state here for the filing deadline and fault rule that frame every number argued at mediation.

Car Accident claims: the national picture

  • Filing deadlines range from 1 year to 6 years by state (average 2.7 years)
  • 9 of 51 states cap non-economic damages for this claim type
  • 12 states use no-fault auto insurance, which changes when you can claim pain and suffering

Premises Liability claims: the national picture

  • Filing deadlines range from 1 year to 6 years by state (average 2.7 years)
  • 9 of 51 states cap non-economic damages for this claim type

Popular state guides

CaliforniaTexasFloridaNew YorkPennsylvaniaIllinoisOhioGeorgiaAll states →

Which case type is your potential case?

The same situation runs through different legal lanes depending on how it happened — and the lane changes what you can recover.

Car Accident →

Crash claims are the ones most often mediated, because liability is usually the smaller argument and the number is the larger one; the motor calculator frames that number from your bills, lost income and your state’s fault rule.

Premises Liability →

A slip, trip or fall mediation usually turns on notice of the hazard and on your share of fault, so the comparative-fault rule that drives the calculator is also what drives the bracket the insurer will offer.

Medical Malpractice →

Malpractice claims are treated differently by some mediation statutes: Florida, for instance, carves a claim of medical malpractice out of the provision that otherwise compels mediation on one party’s request (Fla. Stat. 44.102(2)(a)3.).

Frequently Asked Questions

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Pain and Suffering Calculator: The Multiplier Method

The multiplier and per diem methods explained honestly, the severity bands behind them, and the state caps that limit them.

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Medical Liens on a Settlement: Who Gets Paid First

Medicare, Medicaid, health plan and hospital liens: the order of payment, the 3 reductions, and how to resolve them before you sign.

Sources & review

Information on this page reflects laws and published figures as of 2026-09-14. This is general information, not legal or medical advice, and not a prediction for any potential case. Verify current rules with a licensed attorney before making decisions. Learn about our methodology.

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