Being involved in any sort of legal dispute can be overwhelming and stress-inducing. People are often particularly worried about having to go to court and appear in front of a Judge. And, giving testimony can be considered a harrowing experience. But there is a way to avoid expensive and stressful litigation in any case, including a personal injury case. While going to court is always an option there are a myriad of chances to resolve a personal injury claim without getting embroiled in ongoing litigation.
There are various forms of negotiation that can take place from those that are very informal and pursued via email and telephone conferences, to a meeting between the parties’ sans a mediator, to a more serious formal mediation. All of these avenues provide options for both parties to discuss their legal positions and proposed remedies that can lead to a mutually agreeable settlement proposal and final document.
Informal Email/Telephone Conferences
Depending upon the willingness of both parties, it is possible for the solicitors for each party to attempt to provide settlement discussions, evidence, positions and proposed settlement terms via a telephone call that is memorialized via writing or by email. This method can provide both parties with a good understanding of each other’s position and a framework for settlement terms.
Initial and Informal Settlement Conference
In many instances, the solicitors have worked together in the past and have a good working relationship. In these cases, it is possible for the parties to agree to meet, in person, for informal settlement discussions. When the parties agree to act in this manner, they save on the cost of a formal mediator. If the parties agree to conduct an informal settlement conference, the parties will select a location and a time that is mutually agreeable for the meeting.
Prior to attending an informal settlement negotiation meeting, you will most likely meet with your solicitor to discuss the information you would like to share with the opposing party and define your optimal settlement terms. Then, if the meeting is successful, it is likely that you will be able to enter into a settlement agreement that both sides are amenable to.
Formal Mediation Proceedings
It is possible that you will have more than one option for formal mediation. Oftentimes, the court will provide parties with a court-provided mediator at no cost to the parties. This type of mediation will provide the parties with a limited period of time to come together with a court-appointed mediator to help them work out their differences and hopefully reach a settlement agreement.
The other option is for the parties to agree to use a mediator of their mutual choosing. When doing so, the parties will agree to split the cost of the private mediator’s fees. While this is more expensive, the parties can also elect how much time they want to spend in mediation versus what a court might permit.
In all instances of attending mediation you can expect the following:
- The mediator may or may not be an actual Judge
- The mediator will not be involved in any ongoing litigation if the case does not settle
- Your solicitor will most likely meet with you prior to mediation to inform you of the content of the evidence you will be providing and to review your testimony.
- You will most likely be informed as to how long your solicitor expects the mediation might take the appropriate way to dress for the meeting and the proper manner in which to address the mediator, if at all.
- The mediation will have a set time and place and you will be expected to be prompt and present for the entire duration of the mediation.
- All parties who have the authority to accept a settlement agreement must be present to give their consent to any agreed-upon terms.
- Once a term is agreed to, you cannot renege on the agreed-upon term. It will become part of the agreement
- It is possible that you will make partial progress in a single mediation and need to return for a final session to complete the settlement terms.
- Mediation can result in a complete and agreeable settlement agreement and becomes legally binding and enforceable on the parties once signatures are affixed to the agreement.
While going forward with a trial can be a daunting proposal, it is possible to avoid the experience by using these various forms of informal and formal negotiations to resolve the outstanding issues in a personal injury case. This process allows for the parties to retain control over what they are willing to agree to. It also provides them with an opportunity to avoid having a Judge make important findings for or against them.
