When a Case Doesn’t Settle in Mediation, Here’s What’s Next
May 15, 2019 | Sagi Shaked
When it comes to choosing mediation to “argue” a Personal Injury related case, there are many solid reasons to go this route. The choice to use mediation (if it suits the particulars of the case) can speed up the legal process, provide a more concise handling of the case, and it’s known to be far more cost effective than preparing for trial (although the latter reason should not be the biggest factor when a victim’s right to justice is being put at stake).
To better understand why a case may not settle as hoped for at mediation, it’s important to first understand the true purpose of mediation (we discussed this at length in Deposition, Mediation, Litigation: What Do They Mean For Your Case?).
Prior to the mediation it’s important to go over any questions the client may have in the event they don’t understand something that may or may not occur. This is where the question of “what if my case doesn’t settle?” can be asked, and the lawyer can provide the best insight he or she has as to what happens should mediation not result in a settlement. And, that’s what this article will touch upon: “Mediation didn’t result in the hoped for settlement! What now?”
- What are the three steps to mediation?
- What happens if a case doesn’t settle during mediation?
- How do accident lawyers prepare for trial?
- Sagi Shaked explains mediation in a 2 minute video
What’s most important is to heed the advice of a lawyer when they’re explaining what may be asked within mediation and fully understanding why, with their experience to guide them, they chose this method of litigation as opposed to any number of other Alternative Dispute Resolution options.
What are the three steps to mediation?
- The parties and the mediator have control of where and when the mediation takes place, who will be present during a mediation, and how the mediation is to be financed; many of the best lawyers do not like to utilize the Arbitration method to litigate their cases. While this article is not going to touch on Arbitration in any capacity, the practice itself is thought by top Personal Injury lawyers to be unfair and cruel to the client, and thus is never in any accident lawyer’s best interest to pursue it.
- Mediation is usually voluntary, and both parties must agree that this is how they will attempt to resolve a legal dispute; however there are occasionally used statutes or court orders that may legally require a person or persons involvement in mediation.
- Mediation is a common practice in Personal Injury cases and often helps to speed up the process to recovering damages on the client’s behalf after a settlement is reached.
What happens if a case doesn’t settle during mediation?
Top lawyers hear this all the time, and they know exactly how to ease their clients’ minds when a case doesn’t settle during a scheduled mediation. First of all, it’s important to remember that it’s not the end of the world. Insurance companies often play schoolyard bully in an effort not to provide the client with the compensation they know they deserve. This injustice often leads to cases going to court, especially cases which resulted in serious life-threatening injuries such as TBI, wrongful death, or paralysis.
Just because a case doesn’t settle quickly, it doesn’t mean it’s over. Quite the contrary. “Paper pusher” lawyers (those who do the minimum amount for the client to “win” a case) will try to argue this point and they’d be incorrect. Getting a client out the door with a check as quickly as possible cannot be considered a success.
An experience, board certified attorney knows they must stay the course, stand behind the client, and at the end of litigation (and trial if necessary) not only will the check be larger, the client will be able to say they received justice and weren’t kicked out the door with the minimum amount done for them.
How do accident lawyers prepare for trial?
So, what really happens when a case doesn’t settle at the mediation? This is when everyone involved in the case must be “at the ready”. The experts (doctors, witnesses, psychologists) must be subpoenaed (and have advanced notice of their necessity to appear), depositions must be completed and their documentation in order.
When a mediation doesn’t resolve a case, the “impasse” will necessitate the case goes to trial to be heard by a judge. There are occasions when the defense will concede the night before, or even the hour before trial and offer a settlement to the plaintiff’s lawyer.
If a settlement is offered before trial, it’s up to the victim, their family, and at the best advice of their lawyer to either accept the offer of a settlement or proceed with trial. A lawyer will take many factors into account when advising a client of their options. It’s not a decision made lightly, and great care must be taken to fully understand whatever option is decided upon.
No two cases are alike, and while some settlements may be acceptable and trial can be avoided at the last moment, this is not the standard and will not always be the case.
In the following video, Sagi Shaked of the Shaked Law Firm further explains the process of mediation:
The most important aspect of any case is receiving justice
What’s best for one case may not be what’s best for another. The most experienced lawyers know that by staying the course, seeing the case through to the end (to trial if necessary) they can provide a successful outcome for the client. Not only is this a financial success (large verdicts can provide for the client and their family over the course of a lifetime after catastrophic injuries that require extended care) but this can also be a great reduction of mental anguish for the victim as well. Knowing the lawyer believed in them, stood by them, and in the end were able to provide them not only compensation but justice for their pain and suffering is what’s most important.
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