News & Events:

WHY NOT MEDIATE BEFORE A LAWSUIT IS FILED?

August 5, 2014

We may get drummed out of the Association of Defense Counsel for this suggestion, but we believe that pre-litigation mediation should be considered more frequently.  There are several good reasons, the best of which of course are time and money.

Traditionally, insurance carrier claims representatives would negotiate with plaintiffs’ attorneys in an attempt to settle cases.  That still works in the majority of cases.  However, there can be complicating factors:  1) Some plaintiffs’ attorneys resist negotiating with claims people over the phone, and, (2) Since so many cases are mediated these days utilizing a “neutral,” newer attorneys often hesitate to become involved in “the old days” practice of direct dealing.

Claims professionals are very often not in the same state where a case is filed and do not know the plaintiff’s attorneys or their reputations, their track records both with respect to settlements and trials, and other important considerations. 

A defendant’s chances of success at mediation are enhanced when a limited assignment is made to competent defense counsel.  Competent means a firm which (a) knows the plaintiff’s attorney and his or her “tendencies”; (b) knows the venue and likely settlement and verdict values; and (c) can assist in making sure sufficient documentation is obtained to properly evaluate the case.

The Central Valley of California is a decidedly different venue than Southern California or the Bay Area.  The value of a dollar is different as are the jurors and their verdicts.   Lawyers in the valley still guard their reputations.

To properly evaluate any claim requires sufficient medical, employment and other records that are not available pre-litigation except from Plaintiff’s counsel.  Having a relationship with Plaintiff’s counsel, or a solid reputation locally, can substantially increase the amount of pre-litigation information obtained.  There are many reasons why Plaintiff’s counsel may have an interest in pre-litigation mediation.   Time and money always being the most significant.
 

Author

James D. Emerson
James D. Emerson

Practice Area

  • Business Disputes & Litigation