For over a decade, I have written and provided my clients with material that they can read prior to attending settlement conferences in their personal injury cases. Settlement conferences however, like so many other things post-COVID, are different now than when I originally wrote about them. This article is intended to assist people in preparing for their settlement conferences in our current, post-COVID world.
Most of the people who hire us have never previously experienced a major injury, have never had to deal with scheduling visits with multiple doctors and therapists, and have certainly never sued anyone. Now suddenly all of those things are part of their new normal. And now your case gets set for a settlement conference. It’s natural to have questions about what this means. Years ago, I started writing down the questions my clients asked about this process, and ten thousand clients later, and after thirty years of representing people, I have a pretty comprehensive list of those frequently asked questions. This article is not a substitute for speaking with your lawyer but might be helpful in answering some of the most common questions that seem to come up when one learns that their case is going to a settlement conference.
Question #1: WHAT IS A SETTLEMENT CONFERENCE?
A settlement conference is simply a meeting between the parties in a lawsuit, their lawyers, and a specially selected neural party, called a mediator. As the name implies, the meeting is set with the objective of trying to work out an agreement between the parties instead of proceeding through a jury trial, if possible. Trials are unpredictable, whereas settlements are not. The settlement conference is the opportunity for you to have at least a say in how your case should resolve before you give all that power away to a judge and a jury who will thereafter decide your fate.
Question #2: DO I HAVE TO PARTICIPATE?
Yes. Typically (but not always), the judge assigned to your court case requires the parties to try to work things out before trial. No one can make you settle, but the trial judge often will continue your trial indefinitely until the parties participate in a formal settlement conference.
Question #3: GENERALLY, HOW SUCCESSFUL ARE SETTLEMENT CONFERENCES IN GETTING CASES SETTLED?
Every case is different, but my own experience is that settlement conferences are very successful in settling cases. Roughly, in my experience, I would say 95% of the time cases will settle at a settlement conference or very shortly after. Even when cases don’t actually settle, participation in the settlement conference process helps clarify and focus the disputed issues moving towards trial. Knowledge is power, and a good settlement conference, even when the case doesn’t settle, provides your lawyer knowledge of what the other side thinks about you and your case.
Question #4: HOW DO THESE SETTLEMENT CONFERENCES WORK?
Since COVID, almost every settlement conference is conducted via teleconference between the parties. You are free to attend by Zoom in the comfort of your own home or office. We, however, encourage our clients, if possible, to come to our office which allows us to meet in person in advance of the conference. The mediator nearly always hosts the teleconference from his own office or home. The lawyers and insurance company personnel will conference in from their offices. The meeting begins with your side having a private talk with the mediator. During that discussion, the mediator will ask you easy questions like: “How are your injuries now?” The mediator will also ask questions about legal issues that are directed to your lawyer. Eventually the mediator will ask you and your attorney to make an initial offer for the settlement of your case. The mediator will then depart from the chat room and begin a discussion with the other side. This allows you time to speak privately with your attorney, to use the restroom, freshen drinks, etc. Later, the mediator will return and will typically deliver an initial counteroffer for settlement and will discuss some of the reasons why the other side feels the way they do about your case. The mediator will then encourage you and your attorney to advance a new offer to move the negotiations forward. This process will continue back and forth until either the parties reach an agreement, or the parties reach an impasse where it becomes obvious that the case will not settle. If the case settles, the mediator will prepare a basic written agreement and will have you, the other side, and the lawyers sign off on the terms of that agreement. Later, in a week or so, a more formal final settlement release agreement will be circulated and signed, and then a check from the insurance company will be issued.
Question #5: DO I NEED TO MAKE A DECISION ON SETTLEMENT RIGHT THEN, OR CAN I SLEEP ON IT AND DECIDE LATER?
No one can force you to do anything at a settlement conference that you don’t want to do. Understand however that with the ever-increasing costs of continuing litigation that both sides face, it is sometimes financially necessary to make a decision on the spot. The insurance company often makes offers that are justified by the costs saved by settling a case sooner, and avoiding the expenses of expert witnesses, etc. Insurance companies will sometimes condition an offer upon its acceptance that day, or sometimes the following day at the close of business. So, yes, you can decide to think overnight about any offer you are extended but doing so could risk the offer being withdrawn. If you are the type who wants to get input from a friend or family members before you make a major decision, we strongly encourage that you invite those important people in your life to attend this conference with you.
Question #6: IF THE CASE DOESN'T SETTLE AT THE SETTLEMENT CONFERENCE, IS THAT THE LAST CHANCE WE WILL HAVE TO SETTLE BEFORE GOING TO TRIAL?
It’s hard to say. Some cases do settle later, while others do not. The settlement conference is certainly the best opportunity to reach a settlement, if for no other reason that all of the decision-makers are on the teleconference on that day, and they are all very focused on you and your case, which is not likely to happen again until trial.
Question #7: WHO SELECTS THE MEDIATOR?
Once the parties agree or are ordered by the court to participate in a mediation, the lawyers for each party will send each other lists of proposed mediators. Eventually, the lawyers collectively agree on someone that both sides like and respect. Mediators are typically well seasoned lawyers from our community and are often retired judges. You can take comfort in knowing that the person acting in the role as mediator is a battle-tested professional who gets selected (and who was agreed to) precisely because of their knowledge, experience, and reasonableness, and because your attorney respects their opinions.
Question #8: WHAT IF I’M ASKED A QUESTION BY THE MEDIATOR AND I PROVIDE A BAD ANSWER?
In our teleconference discussions with the mediator, what you say and what’s said to you is all confidential. We suggest you speak from your heart. The mediators are selected by agreement between the lawyers in the case. We would never agree to a mediator who isn’t excellent at his or her job, with the utmost knowledge and ethical character. Basically, if you are speaking from your heart, there is no bad answer.
Question #9: WHEN DO I GET TO KNOW HOW MUCH WE ARE GOING FOR AT THE SETTLEMENT CONFERENCE?
Typically, at least a week or so before the conference, all sides are required to submit their respective position statements to the mediator, in writing. This document tells your side of the story and ends with an explanation as to how much you and your attorney feel the case is worth. In order to make any kind of initial offer, your attorney will need to contact you in advance of finalizing the position statement. In that discussion, the initial settlement offer is decided upon. Only after you provide your attorney with your authority to make this initial offer will they send that figure over to the mediator.
Question #10: IS ATTENDING A SETTLEMENT CONFERENCE A GOOD THING FOR MY CASE?
It’s actually excellent! These conferences are typically set after both sides have completed all or most of the discovery phase of the case and have their cases nearly ready for trial. It means you are finally getting to the end-stage of this long ordeal that may have begun years earlier. Statistically, the overwhelming majority (95%) of the cases that go to a settlement conference settle, and the vast majority of our clients leave this process feeling that their matter was resolved fairly and are then free to start a new and more satisfying chapter in their lives, with this ordeal finally behind them. So, congratulations, you are nearing the finish line.
These questions and our answers are likely only some of the questions you may have. They are certainly the most commonly asked questions. There is nothing wrong, however, with you picking up the telephone after reading this article and asking us more. I continue to add to my list of questions asked by my clients on this subject. Someday, it is quite possible that I may update this article to include a new question that you have asked me.
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