Answer: If no settlement is reached, nothing is lost – the case will simply continue on its normal track toward trial. Not settling at mediation is not a failure or a “loss” at all. In fact, it’s pretty common for mediations to end without an agreement on the first try, especially in substantial cases. Good mediators understand that an impasse (no deal) can happen and they don’t consider it a defeat. Sometimes, both sides just need more time or more information, or the defendant isn’t yet offering what you deserve.
So, what next? If mediation ends without a settlement, the court will be notified only of the fact that no agreement was reached (the details of what was discussed remain confidential). Then the lawsuit continues forward. We gear up for the next steps in litigation – that could mean completing any remaining discovery, filing or responding to motions, and ultimately preparing for trial on the scheduled trial date. Essentially, we pick up where we left off before mediation. The case is placed back on the trial docket.
However, just because the formal mediation session ended doesn’t always mean negotiations are over. Often, mediation can open the door to a settlement later. The offers exchanged give everyone a clearer picture of how far apart we are. In some cases, after a mediation, one side might rethink their position and quietly reach out to the other (or the mediator might follow up in the days or weeks after to see if either side has softened). It’s possible that as the trial date gets closer, the nursing home’s insurance might increase their offer based on what they learned at mediation. We might even have a second mediation or informal settlement talks down the road. In short, mediation can plant the seed for a resolution later, even if it doesn’t happen on the mediation day.
It’s important for you to know that not settling at mediation does not prejudice your case in court. The judge or jury won’t know and shouldn’t know what happened in mediation. They won’t think, “Oh, they failed to settle, so one side must have been unreasonable.” None of that comes into play. We simply proceed as if mediation was just a confidential meeting (which it was).
Emotionally, some clients feel disappointed if a mediation doesn’t end in a settlement because you went in hopeful to resolve it. That’s understandable, but remember: holding out for a fair outcome is the right thing to do if the offers were not sufficient. You didn’t “lose” anything by trying mediation – you gained insight. You now likely know the maximum the nursing home was willing to pay at that time. If it’s not enough, we keep fighting. Your day in court is still ahead, and we’ll be ready.
Think of mediation as one step in the journey. Sometimes that step leads to a resolution; sometimes it tells us we need to take the next step (trial). Either way, we use what we learned. So if no agreement is reached, we regroup and prepare for trial with no penalty for having attempted mediation. And who knows – sometimes cases settle even on the courthouse steps right before trial. The bottom line: not settling is not the end; it’s just moving on to the next phase. We will continue to advocate for you all the way.