Settlement Conferences And Mediation In Personal Injury Cases
Chalat Hatten & Koupal P.C.
Attorneys at Law
The following is offered to provide you with information about what a settlement conference is, what you can expect at a settlement conference, and what you need to do in order to prepare for the settlement conference.
- What is a settlement conference? A settlement conference is a formal meeting between you and the opposing party or parties, where you will attempt to voluntarily resolve your case through good-faith negotiations. An impartial mediator or settlement judge will preside over the conference, and attempt to facilitate settlement of your case.
- Why a settlement conference? A settlement conference is the best way to resolve your case without the cost and risk of litigation. Parties often prefer to resolve their case at a settlement conference because settlement provides a certain result, and allows the parties to control the ultimate outcome of the case through an agreed-upon resolution. At trial, the outcome of your case is no longer in your hands: it is in the hands of the jury. In fact, in 2009, only 1.3% of cases filed in the United States District Court for the District of Colorado actually went to trial. This means that out of approximately 2,000 cases filed that year, only 28 cases went to trial. Another reason for a settlement conference is that courts often require that the parties attend a settlement conference prior to trial.
- What is a mediator or settlement judge? The settlement conference will be led by a trained settlement judge or mediator, whose role is to facilitate discussion between the parties, eliminate barriers to resolution, and otherwise assist the parties in reaching an agreement. The settlement judge or mediator is required to be impartial and neutral. Because of this, don't look to the settlement judge or mediator to validate your side of the story, or to make determinations about what is right or wrong, or fair or unfair. Also, do not look to the settlement judge or mediator to act as a decision-maker. While he or she may recommend that you take a particular course of action, the decision to settle your case is still entirely up to you.
- Who will attend the settlement conference? You will be required to attend the settlement conference. Someone from our office will attend with you- usually the primary attorney who has been working with you on your case. The opposing side will be represented by an attorney. An adjustor from the defendant's insurance company may also be present. The defendant is usually not present.
- How will the judge or mediator know about my case? Each party will have the chance to present their side of the case in a written statement (usually called a "settlement statement" or "settlement memorandum"). This document will be sent to the mediator or judge approximately one week prior to the scheduled conference. The intent of this written statement is to give your side of the case, both positive and negative. The statement we submit on your behalf will usually contain a specific demand for settlement. The statement submitted by the defendant's insurance company will usually contain a specific amount for which the insurance adjustor has the authority to settle your case. The settlement judge or mediator will review each statement prior to the settlement conference so that he or she has an idea of the facts of the case, the contentions of each party, and the specific dollar amount each party would be willing to settle the case for. These written statements are confidential, and will not be shared with the opposing party absent consent. This goes for statements made during the settlement conference as well - anything you say or mention to the settlement judge or mediator during the settlement conference cannot later be introduced against you at trial. So, you should feel free to talk candidly with the mediator about your case, and don't be afraid to talk about the weaknesses in your case if you are asked.
- Are there different types of settlement conferences? Generally, there are two types of settlement conferences: (1) court settlement conferences, and (2) private settlement conferences. A court settlement conference takes place with the judge or magistrate judge who is already presiding over your case in court. These conferences are most commonly used in federal court proceedings, but they are sometimes used in state court cases as well. Typically, court settlement conferences are shorter in duration, lasting only 1 - 2 hours. There is no charge to either party to participate in a court settlement conference. Most courts actually require that the parties participate in a court settlement conference if they do not decide to hire a private mediator. A private settlement conference is scheduled through a private company specializing in mediation. Frequently used companies in the Denver area include: Judicial Arbiter Group (JAG), Judicial Arbitration and Mediation Services (JAMS), and Legal Resolution Center (LRC). Usually, the mediator selected for your settlement conference will have prior experience as a judge or magistrate in either state or federal court. Often, private settlement conferences are set for all day or at least a half-day. The parties typically agree to split the cost of these settlement conferences beforehand. The goal of both types of settlement conferences is the same: to make a good-faith effort to voluntarily resolve your case without the cost or risk of litigation.
- Where will the settlement conference take place? If your settlement conference is with a judge or magistrate judge, it will most likely take place at the courthouse, either directly in the courtroom or in a courthouse conference room. If you are attending a private settlement conference, the settlement conference will most likely take place in a conference room at the offices of the private company who the parties have hired. Please contact the attorney working for you prior to the settlement conference, and be sure you know where to be, and at what time.
- Do I have to agree to attend a settlement conference? Usually, yes. Most Colorado courts (both state and federal) require that the parties complete ADR (Alternative Dispute Resolution), prior to going to trial. Also, as discussed above, a settlement conference can be the best way to resolve your case without the cost and risk of litigation. Do I have to settle my case at the settlement conference? No. We will certainly give you the benefit of our experience, and make recommendations about whether we think you should settle. The settlement judge or mediator may also give you his or her recommendations, based on his or her experience as a trial judge in similar cases. However, you are the ultimate decision maker when it comes to accepting or rejecting an offer of settlement. What happens if we don't settle at the settlement conference? Your case will continue towards trial. Unless the parties are diametrically opposed, or one party is being unreasonable, settlement negotiations usually continue up to trial. It is not uncommon for a case to settle on the day before trial, or on the courthouse steps the morning of trial. Sometimes, we will enlist the help of the settlement judge or mediator in continuing settlement negotiations with the opposing side over the telephone, even after the formal settlement conference is over.
- What can I expect at the settlement conference? The parties are usually separated into separate rooms, with the settlement judge or mediator going back and forth between rooms as the discussion / negotiation progresses. This is usually done so that each party feels comfortable discussing their case with the settlement judge or mediator in a candid manner. Throughout the conference, the settlement judge or mediator acts as a "go-between" - relaying information, questions, offers or demands for settlement, and the like. As the process continues, the settlement judge or mediator will offer his or her advice, recommendations, and input. At the outset, the mediator or settlement judge will probably give you an opportunity to tell your side of the story. The settlement judge or mediator might also ask you to clarify a confusing fact or describe how something that happened in your own words. For example, you might be asked to describe or demonstrate how the accident happened, or to describe the nature and extent of your injuries. He or she may ask you how this incident has affected your life, your personal relationships, or your employment. After the mediator has heard from both sides, the parties usually begin to exchange demands and offers to settle the case. The settlement judge or mediator will take our opening demand for settlement to the opposing side and obtain an offer to settle in response. This process usually continues - with one side going up and one side coming down - until the parties reach an agreement, or until one party refuses to come up or down any more. Intertwined in all of this will be an ongoing discussion about / evaluation of the merits of your case. Be prepared to discuss the strengths and weaknesses of your case openly and honestly with the settlement judge or mediator as the negotiations continue. You can expect that the following subjects will be discussed at your settlement conference: o Disputed factual issues; o Disputed legal issues; o Key witnesses and the credibility of these witnesses; o Pivotal exhibits that support or contradict your claim; o The elements of your claim and the evidence that either supports or contradicts each element. If the parties are unable to reach an agreement within a reasonable time, the mediation may end. Also, if we sense that the other side is not negotiating in good faith, we may recommend that you terminate the mediation early so as to save time and avoid cost.