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“The life of the law has not been logic; it has been experience.”

-Oliver Wendell Holmes, Jr.

Alternate Dispute Resolution: The Road Less Traveled

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Alternate Dispute Resolution: The Road Less Traveled

Settlement is by far the most common method by which civil cases are resolved. However, some civil lawsuits seem destined to find their way to a courtroom for trial and, ultimately, to a jury deliberation room for a verdict. The one common denominator of many civil cases that end in a jury verdict is the failure of anyone associated with them to broach or pursue the subject of settlement.

Advantages offered by resolving cases through settlement

From the perspective of litigation defense counsel, there are several important advantages associated with settling a case before trial. Some of the advantages include:

  • Reduced Litigation Costs: Taking a case to trial involves a tremendous investment of time and money. Settlement can avoid expensive medical and expert pretrial discovery costs, as well as the expenses associated with having an expert witness testify at the trial.
  • Gauging Value: One of the difficulties defense counsel frequently encounters in civil litigation is determining the value opposing counsel and the plaintiff place on their case. Settlement discussions frequently reveal insight into the value, whether it is verbalized or not, that opposing counsel and his or her client place on case.
  • Narrowing Issues: Settlement negotiations that do not end in resolution of a case might result in agreement on disputed issues or facts that could save money by shortening the time needed for a trial.

Whether the parties sit down together with their attorneys in an office, participate in a pre-trial settlement conference with the assistance of a judge or agree to participate in private mediation with the assistance of a trained mediator, the benefits of settlement discussions far outweigh the cost or time involved in arranging and participating in them.

When is the best time to schedule a settlement conference?

Deciding upon the right time to have the conference depends on each case. In some cases, particularly those in which video evidence is present, opting for settlement early in the case makes sense to avoid discovery that will do little to persuade the trier of fact more than the video itself. If there is no objective video evidence, then opting for a conference at the close of witness discovery is an appropriate time.

Pre-trial conferences might sound good, but are they the best choice

There are many pros and cons for attempting to settle a case with a pre-trial settlement conference. One of the pros, as well as being one of the cons, is that the conferences are free. Judges in Cook County give up their valuable time to sit down with the parties and their attorneys to attempt to bridge whatever gap stands between them and settlement of the case.

Most of the trial judges presiding over pre-trial conferences see jury verdicts handed down every day, so they might only require a one to three page pretrial memorandum to get up to speed on a case in preparation for the settlement conference. They offer their valuable insight as to what the jury would decide on liability, how a jury would look at evidence and, if necessary, how much a jury would award the plaintiff for a particular injury. As helpful as the insight and prodding of an experienced jurist might be to moving a case toward settlement, the fact that pretrial settlement conferences are free can limit the effectiveness of those efforts. Because no fee is required to schedule a conference, a plaintiff has not invested any additional money to attend the conference and might be inclined to head to the door if dissatisfied at the way things are going. Regardless of the risk that a pre-trial conference might not lead to resolution of the claim, the conference could offer litigation defense counsel an insight into an adversary's valuation of the case. I have seen cases settle at a pre-trial conference for less than half of the plaintiff's initial demand because the conference helped to focus attention on the true settlement range for the case.

Alternate dispute resolution: Committing to private settlement negotiations

The fact that private mediation requires a financial investment that could approach thousands of dollars to secure a spot with a mediator means that both sides have their own money invested into the mediation. This will normally keep the parties at the settlement table longer than at a pre-trial conference with the court where walking out is not associated with a financial loss.

Some of the cons with private mediation are the high fees, contractual agreements and memorandum requirements usually associated with arranging and conducting the sessions. Another problem is that securing a spot with a particular mediator might delay the case a couple of months because the desired mediator is booked. Defense attorneys normally opt for alternative dispute resolution. One of the reasons is that it greatly benefits their case if a retired judge, now acting as a private mediator, is able to sit down and address the unrealistic settlement expectations directly with the plaintiff. Sometimes the case does not settle, or it may take two or three conferences, but having someone not associated directly with the lawsuit offer an opinion of the claims and defenses benefits both sides. Unlike a trial judge handling a congested calendar of cases, the full attention of the mediator in a private mediation is focused only on one particular case and the issues associated with it. Follow up sessions with a private mediator are much easier to schedule than are pretrial conferences with busy trial judges.

Obtaining more information about alternate dispute resolution

Private mediation is just one option available through alternate dispute resolution for parties wishing to explore settlement of their cases. At McKenna Storer, litigation services attorneys can discuss the best methods to achieve settlement of a claim. For more information, contact Alexander Sweis.

Categories General Litigation



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