No Fault – Means of Settling Your Case
Although it of course can take months or even years of work to get there, eventually, you will want to know about the process of settlement. Settlement is a process whereby the Plaintiff (or claimant) and Defendant agree to a certain set of conditions -usually an amount of money- to all or part of a claim. But how does this work. Typically, it can work in several different ways:
Pre-Litigation Settlement/Payments – The first, and easiest way of resolving a claim, is simply having the insurance company voluntarily make payments for the claims presented. For example, if a request or demand is sent to the insurance company to pay lost wages and medical bills that resulted from a motor vehicle accident and the insurance company then pays on that demand, it is conceivably possible that no lawsuit would ever be necessary. Although this option is not always possible for a number of reasons, this is the fastest and cheapest route to resolution of claims.
Case Evaluation – When a case cannot be resolved without filing a lawsuit, a case proceeds to litigation. A case can settle at anytime during litigation, but most frequently, the next biggest opportunity comes after discovery closes and frequently, when the parties attend a process called case evaluation. In this process, the parties each submit summaries of information to a panel of attorneys, who evaluate a case and place a “case evaluation award” on the matter. There are certain possible sanctions associated with rejection (the possibility of having to pay at least a part of the opposing sides attorney’s fees incurred in the case) and so there is strong possibility that each side will at least strongly consider whatever number the evaluators come up with. If both sides accept the case evaluation award, there is an automatic settlement of the claims up tot hat point.
Facilitation – Facilitation can also occur at any time during the litigation (or while rare, technically even during the pre-litigation) process. This process takes a very experienced attorney or retired judge familiar with the area of law, and, like case evaluation, the facilitator will be presented information about the case in an attempt to help resolve the matter. The difference is that there are no sanctions relating to this process, and the facilitator works directly with the parties to attempt to resolve the case. Most often, this process in conjunction with case evaluation will help resolve any disputes the parties may have and help them come much closer to a resolution.
Settlement Conference – Typically, after other settlement discussions have failed, judges will often require the parties to come to a settlement conference where the presiding judge can help the parties come to a resolution. Similar to a facilitation, there are no sanctions for failing to settle during a settlement conference, but a judge can often be a very effective facilitator for bringing the case toward resolution.
Arbitration – If all other means above have failed, parties will sometimes the parties will elect to resolve their case through a binding arbitration. This is much like a facilitation, except that a binding arbitration means that if the parties fail to agree, the arbitrator gets to make a final determination of the claims and set a final value which cannot be rejected by the parties. If the arbitration is non-binding, it is typically very similar to a facilitation.
As one can see from the above, there are many ways a case can settle other than through a trial, and many of these methods are much cheaper and resolve the case more quickly, which is why greater than 95% of cases eventually resolve through a means other than settlement.
John T. Schroder
Attorney at Law
Law Offices of Joumana Kayrouz