Mediation and Arbitration

There are many scenarios that can take place to settle your case between the time the Complaint is filed and the actual Trial. In fact, a majority of the cases which didn't settle BEFORE the Complaint was filed settle before Trial.

For instance, if the other party (Defendant) is being represented by the attorney for his/her insurance company, the attorney might make an offer to settle when he realizes that your claims are valid and will reach or exceed the defendant's insurance policy limits. Or he might make a settlement offer based on a reasonable amount that satisfies you and your attorney, and you will accept. There are many opportunities for the two attorneys to confer during this period and they know it is to everyone's benefit if they can settle the case before it goes to Trial.

The attorneys will also be meeting with the Judge assigned to the case during this period. They will have to attend a Case Management Conference, Mandatory Settlement Conference, and Final Case Management Conference at the least, before the trial. These conferences keep the Judge apprised as to the status of the case and if someone is dragging his/her feet, the Judge can impose sanctions.

Two methods to bring forth a settlement are Arbitration and Mediation. Both can be very effective and both require your presence.

Mediation is facilitated by a mediator. The Court maintains a list of mediators, usually attorneys or retired judges, or you and the other party can agree on a mediator. During the mediation, the mediator meets with each side separately; the parties are not together.

Here is some information about Mediation:

• The parties to the case agree to have mediation
• Both sides agree on a mediator
• Each party submits a "brief" to the mediator prior to the mediation
• The cost of the mediation is usually split between the two parties
• Both parties have agreed to cooperate in the mediation process and the case is somewhat close to resolution

The mediator functions somewhat like a "hostage negotiator" in the sense that he talks to each side, separately, in an effort to bring about a resolution that both sides can agree to. He or she will go back and forth between the parties, making suggestions, making offers and counter-offers, discussing the pros and cons of the case, until, hopefully, both sides come to an agreement. After an agreement has been reached, the attornies will prepare the necessary settlement documents and the case will be finished.

Arbitration is somewhat different. The parties have agreed on voluntary arbitration in an effort to settle their case. It can be "binding" or "non-binding." If it's binding, the parties have agreed to bide by the decision of the arbitrator. If it's non-binding, and one side doesn't like the decision of the arbitrator, that side can opt to go to trial.

After the arbitrator is decided upon, each party sends the arbitrator an Arbitration Brief, basically outlining their case. At the arbitration, usually held in a conference room, each side presents their case to the arbitrator. The arbitrator then has a certain amount of days in which to render his decision. If his decision is binding, or if it is favorable to both sides, the case is over and the settlement documents are prepared. If it is a non-binding decision and one side disagrees, then the case is headed for trial

Only about 5% of all civil cases go to trial. Usually by the time discovery is finished and all efforts have been made to settle the case have been explored, the case will have settled.