Direct answer
Mediation is a confidential settlement meeting with a neutral mediator, often a retired judge. Both sides present their case, then negotiate in separate rooms with the mediator shuttling offers. New York courts often order mediation through programs like the Commercial Division ADR or Supreme Court mediation panels before trial.
In more detail
Mediation in New York personal injury cases is voluntary in some courts and court-ordered in others. The Supreme Court Civil Branch in many counties operates settlement and mediation programs under 22 NYCRR § 202.26 (settlement conferences) and 22 NYCRR § 202.70(g) (Commercial Division), and federal cases in the Southern and Eastern Districts of New York run through formal mediation programs under Local Civil Rule 83.9. By the time a personal injury case has been through discovery and is approaching trial, there is a strong likelihood the court will order, or strongly suggest, a mediation session.
The format is consistent across venues. The parties pick a mediator together. Most often this is a retired Supreme Court justice, a JAMS or NAM neutral, or an experienced attorney who has built a reputation for settling cases. The mediator is paid by the parties, typically split, and fees usually run $5,000 to $15,000 for a one-day session. Catastrophic cases sometimes use multi-day mediations with higher fees.
Each side submits a confidential mediation statement before the session. This is essentially a written argument summarizing the facts, the liability theory, the damages picture, and a proposed settlement range. The mediator reads these in advance and shows up familiar with the file.
The session usually opens with a brief joint presentation, where each lawyer summarizes their side in front of the other party. Some mediators skip the joint session in cases where it would only inflame tempers. The session then breaks into caucus, meaning separate rooms for each side. The mediator moves between rooms, carrying offers and counteroffers, and reality-testing each side: pointing out the weaknesses, asking what happens at trial, pushing each party to a number that reflects real risk.
Confidentiality is governed by NY CPLR § 4547, which protects settlement discussions and offers from being introduced as evidence at trial. That protection is what allows both sides to talk frankly during mediation without worrying that their concessions will be used against them later. The mediator's notes and impressions are also generally confidential.
Settlement at mediation is voluntary. The mediator cannot impose a result. If the parties cannot agree, the case goes back to the trial calendar. In practice, most personal injury cases that mediate settle either at the session itself or in the days and weeks following, when both sides have a clearer view of the spread and the trial date is approaching.
A few practical points about how mediation actually plays out:
- The opening offers are usually theater. The plaintiff demands high, the defense offers low, and both sides know it. The real negotiation starts after the second or third move.
- The mediator earns the fee by closing the gap. A skilled neutral knows when to push hard, when to walk a number across the hall, and when to call a break.
- Authority matters. The defense adjuster needs to be in the room or on speakerphone with real settlement authority. Without that, mediations stall.
- Bracket negotiations (where each side proposes a settlement range) are common in the late afternoon when the spread is still wide.
What I see in NYC cases
I mediated a NYC Sanitation Department case for a Richmond County client a few years ago. Known-hazard tile flooring, three surgeries, COVID delays that stretched the litigation. The City was offering low six figures pre-mediation. We mediated with a retired Supreme Court justice. The session ran most of the day; we did three brackets, walked out twice, came back once. By the end of the day we had a settlement at $1.5 million. Without mediation, that case might have eventually gotten there at trial, but probably not for another 18 months and only with the risk of an unfavorable jury.
Mediation works when the case is mature enough that both sides have real information. Mediating too early, before discovery is complete or before MMI, usually fails because nobody trusts the numbers yet. I tell clients: when the mediator pushes back on something, they are usually right, and listening is what gets the case settled.
Related questions
- How long does a New York personal injury case take?
- How are pain and suffering damages calculated in New York?
- When should I hire a personal injury attorney?
Talk to Nick
Call or text (718) 261-0546. Spanish line: (718) 261-0546. If you have a case heading toward mediation and want to talk through what to expect, reach me through the contact form.
Compliance
This page is general legal information about mediation in New York personal injury cases and is not legal advice. No attorney-client relationship is formed by reading this page. Each case is different, and mediation outcomes depend on the specific facts and the parties involved. Prior results do not guarantee a similar outcome. Attorney advertising.