Jul 15, 2011

About 30 years ago, a number of retired judges got together and formed some of the first mediation companies in the United States. In fact, one of the earliest and longest running of these companies in the whole country is here in Colorado.

The concept was simple: Parties to a dispute, and often their attorneys, can be so polarized in their positions as they approach trial that their emotions can sometimes affect opportunities to settle cases that probably should be settled. These ex-judges saw an opportunity to get paid to facilitate settlements and share their wisdom and experience.

These days, most courts require that parties to a case attend a settlement conference prior to trial. The goal is to involve a neutral mediator who can help each side understand the weaknesses of their respective cases and thus more fully appreciate the risks associated with proceeding to trial.

So, now it's your turn, right? In your case, about a year ago, your lawyer filed your lawsuit. After a lot of paperwork, doctor examinations, answering written interrogatories, and having your deposition taken for hours, you now get a letter in the mail saying that you are scheduled for a settlement conference next month. Well, what's this all about? This article is designed to help answer some of the more common questions we hear from our clients at this stage of their case.

First of all, while every part of the litigation process can be stressful, you should rejoice, at least a little, that your case has been navigated to this point. Settlement conferences are usually the last and best opportunity to settle a case before trial. Most cases that settle after a lawsuit is filed, get settled at a settlement conference. In fact, there are many more settlement conferences than there are actual trials. So, congratulations, you've gone down a tough road and your journey is nearly complete.

Settlement conferences also signify something else. The fact that you are headed to a settlement conference means that you were unwilling to settle this case earlier. It means you stood up for yourself and authorized your lawyer to sue. It usually means that you were unwilling to take the insurance company's first offer. At this stage, you are coming close to taking the insurance company all the way to trial. Statistically, you are one of the very few claimants that the insurance company could not bully into taking what they wanted to pay.

In that regard, the settlement conference puts you in as close to an equal bargaining position as you are ever going to get with this insurance giant. So, think positively, and be proud of your willpower and determination. Hold your head high walking into this conference. Believe me, just getting to the settlement conference has earned you a certain amount of respect with your insurance company adversary.

A settlement conference, as the name implies, is a conference where all the parties to a lawsuit get together in one location. Through the use of a neutral person, usually called a mediator, the parties explore the prospects of settling the current dispute.

Settlement conferences are used in corporate disputes, divorce matters, and especially in our profession, personal injury cases.

Every settlement conference can vary in the process the mediator uses to get to a settlement. However, there are some common aspects of all settlement conferences.

After entering the mediator's office, you will then be directed to a private room where you and your attorney will likely remain for the duration of the conference. You will thereafter be greeted by the neutral mediator. After some discussion with you and your attorney, the mediator will leave your room and enter the room of the opposing party. Some time later the mediator will re-enter your room. This back and forth process can continue for hours, and sometimes, the entire day.

This process of having a mediator go from room to room is also known as shuttle diplomacy. Rarely will there be any face-to-face verbal exchanges between you and your adversary. It instead is done through messages from the other side delivered by the mediator. Money figures are offered and counter-offered. Terms and conditions will be bantered about. And at the end of a successful negotiation, all sides will be required to sign an agreement. If it looks and sounds a lot like your last car purchase, it actually is very similar.

The fact of the matter is that this sort of shuttle diplomacy, where face to face encounters between the parties are discouraged, tends to be how the emotional aspect of the case can be tempered and thereby result in more cool-headed, less impulsive, less emotional decisions being made. Thus, cases that seemed unlikely to settle can usually be resolved through the use of a settlement conference.

Few, if any, settlements result in a complete victory or complete defeat for any party. Trials are where people completely win or completely lose. In contrast, settlements are about give and take. Rarely, if ever, does any party leave feeling that they received an undeserved windfall. In fact, most of the time a good settlement is where everyone walks away at best satisfied and sometimes just a little disappointed.

So, if you are looking to destroy your adversary, save it for trial. This process is about avoiding the uncertainty and significant expenses associated with going through the "complete win" or "complete lose" trial process.

This process works best if you approach it as an opportunity to resolve the riskiest thing in your life, an imminent jury trial, with the prospects of certainty--a final settlement for a sum certain. So it is best to listen carefully to your attorney and follow her/his lead. Usually, being pleasant, cooperative, and candid is the best approach. Because this process is confidential, whatever you share with the mediator must be kept in confidence.

For example, if you have certain fears or concerns about proceeding to trial on your case, now is not the time to show your "game-face." Instead, this would be an excellent time to detail your concerns and seek advice not only from your lawyer, but also the mediator. Believe me, your lawyer would never have agreed to this particular mediator if he/she didn't have extreme respect for this person. So, I suggest that you listen more than you talk. When you do talk, be pleasant, honest and respectful. Use these smart folks in the room to help you make decisions about your case.

The fact of the matter is that certain cases need to be tried. Not all settlement conferences result in settlements. However, as a trial lawyer, I have never left a settlement conference without something. Either, we achieve a settlement, or I learn a good deal about how my adversary plans on trying this case. Either way, settlement conferences serve as an invaluable tool in the litigation process and should always be viewed in that light.

At Anderson Hemmat, we know how valuable the settlement conference process is to a case. We also understand that while we may attend settlement conferences on a regular basis, for our clients this is likely the first and last time they will ever find themselves in this position. That is why we take the time with each of our clients to ensure that they are completely comfortable with what is about to happen in their settlement conference. If you have questions, please call and speak to one of our attorneys today.


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